UNITED STATES DISTRICT COURT DORSED SOUTHERN DISTRICT OF NEW YORK MEMO FK hae mom eeremimne mom wnmecmn aim mies cae com NIDAL AYYAD, : Movant, : -V- : : 93 Cr. 180 (LAK) UNITED STATES, : 16 Civ. 4346 (LAK) Respondent. : Acme: Gece Sea Re NOTE Goa

MOTION FOR CERTIFICATE OF APPEALABILITY Federal Defenders of New York Daniel Habib, Esq. Attorney for Movant Nidal Ayyad 52 Duane Street—10th Floor New York, NY 10007 Tel.: (646) 484-1724

TO: Audrey Strauss, Esq. Acting United States Attorney Southern District of New York 1 St. Andrew’s Plaza New York, NY 10007 Attn: Ryan Finkel, Esq.

Memorandum Endorsement Ayyad v United States, 16-cv-4346 (LAK), 93-cr-180 (LAK)

Movant seeks a certificate of appealability “on the question whether Ayyad was entitled to plenary resentencing upon the vacatur of his Count 10 conviction in light of United States v. Davis, 139 8. Ct. 2319 (2019).” 93-cr-180 Dkt 985, at 2. AEDPA narrowly restricted the availability of appeals from denials of habeas corpus petitions and Section 2255 motions. It provides that “a COA may not issue unless ‘the applicant has made a substantial showing of the denial of a constitutional right.’”

(c). Movant, however, did not contend that when he sought a plenary resentencing that he was entitled to it as a matter of constitutional right. His motion for a COA does not do so now. He now does so only by quoting out of context from Slack v. McDaniel,

(2000), when in fact Slack makes abundantly clear that a COA should issue only upon “a substantial showing of the denial of a constitutional right.”

(emphasis added). As there has been no such showing here, the motion for a certificate of appealability (93-cr-180 Dkt 985, 16-cv-4346 Dkt 19) is denied. SO ORDERED. Dated: November 29, 2020 [ Ge Lewis A. Kapla United States District Judge