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 5TH 

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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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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