United States v. Simmons

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50067

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GEMASE LEE SIMMONS, also known as Geoff Stone, also known as “G”
Simmons, also known as CJ, also known as Kevin,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:16-CV-1165
USDC No. 5:12-CR-108-1

Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Following a bench trial, the district court convicted Gemase Lee
Simmons, federal prisoner # 89016-280, on 6 counts of bank fraud, 16 counts
of production of child pornography, 3 counts of receiving child pornography, 6
counts of distributing child pornography, 1 count of transporting child
pornography, 3 counts of possession of child pornography, and 4 counts of

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
July 13, 2020

Lyle W. Cayce
Clerk
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No. 19-50067
2
extortion. The district court sentenced Simmons to a total sentence of 10,776
months in prison.
The district court denied Simmons’s 28 U.S.C. § 2255 motion without
holding an evidentiary hearing and denied his Federal Rule of Civil Procedure
59(e) motion. Simmons now seeks a certificate of appealability (COA).
Simmons renews his arguments that his trial counsel rendered ineffective
assistance by failing to obtain a forensic expert to review Simmons’s iPhone for
evidence of remote control by two individuals who had previously worked with
Simmons, for failing to investigate exculpatory evidence, and for failing to
interview and call as a witness one of the two individuals who had worked with
Simmons.
This court will grant a COA only when the movant “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make that showing, Simmons must “demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473,
484 (2000), or that the issues presented “deserve encouragement to proceed
further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For a denial on
procedural grounds without analysis of the underlying constitutional claims,
Simmons must show, “at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Simmons has not made the requisite showing, and his motion for a COA
is denied. See id. His motion for leave to proceed in forma pauperis (IFP) on
appeal is likewise denied.
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No. 19-50067
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Simmons’s directly appeals the district court’s failure to hold an
evidentiary hearing on his habeas claims. See Norman v. Stephens, 817 F.3d
226, 234 (5th Cir. 2016). The district court acted within its discretion in
denying Simmons habeas relief without an evidentiary hearing. See § 2255(b);
United States v. Duran, 934 F.3d 407, 411 (5th Cir. 2019). We therefore affirm.
COA DENIED; IFP DENIED; AFFIRMED.
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