Ross grace period, and to be timely, must have been filed by April 24,
1997. Because Silvestre filed the instant petition on January 4, 1999,
long after the deadline announced in Ross, the Court must conclude that
his petition is time-barred.
Silvestre contends that the petition is not time-barred because his
difficulties with English and his inability to find a person to assist
him in preparing the petition constitute excusable neglect. Recognizing
that the "reasonable time" formulation in Peterson v. Demskie, 107 F.3d 92
(2d Cir. 1997), was not sufficiently clear, the Second Circuit created
the Ross one-year grace period to ensure uniform application. See Ross,
150 F.3d at 102-03. Therefore, because granting an extension of time
based on petitioner's "excusable neglect" would be wholly inconsistent
with the established one-year period set forth in Ross, the Court
declines to do so.
In any case, the Court finds that petitioner's contentions regarding
excusable neglect are without merit. First, there is no absolute right to
assistance of counsel in the preparation of a habeas petition. See
McCleskey v. Zant, 499 U.S. 467, 495, 111 S.Ct. 1454, 113 L.Ed.2d 517
(1991). Second, difficulty with English is not coterminous with an
inability to understand English. See Roccisano v. United States,
936 F. Supp. 96, 100 (S.D.N.Y. 1996). Moreover, the fact that petitioner
wrote and signed three letters in English, which he submitted to the
Court during the course of his trial, belies any claim that his
difficulties with English prevented him from filing his petition in a
timely manner. See Petition Ex. B-D.
Silvestre also argues that, even if his petition is time-barred, he is
entitled to habeas relief under 28 U.S.C. § 2241 because of his
"actual innocence." See Tnestman, 124 F.3d at 363. Typically, a question
of actual innocence arises when, as in Triestman, a denial of collateral
relief would require a prisoner to serve a sentence for acts that
subsequently have been ruled not to constitute criminal conduct. See
Underwood v. United States, 166 F.3d 84 (2d Cir. 1999). The prisoner in
Triestman was entitled to seek relief under § 2241 to vacate his
conviction of carrying a firearm in connection with a drug trafficking
offense because the Supreme Court subsequently held in Bailey v. United
States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that a
defendant cannot be convicted under 18 U.S.C. § 924 (c) unless a
firearm is actively employed. See Tniestman, 124 F.3d at 364.
Silvestre's reliance on Bailey in the instant petition is misplaced.
The Bailey Court addressed the statutory interpretation of "using" a
firearm in the commission of a felony. In contrast, Silvestre's sentence
was enhanced pursuant to the Sentencing Guidelines for possession of a
firearm. Therefore, Bailey does not entitle petitioner to relief under
In addition, respondent argues that Silvestre could not Establish his
"actual innocence" given the overwhelming level of proof presented by the
government. See Forbes v. United States, 1999 WL 32905, *2
(S.D.N.Y.Jan.20, 1999)(Restani, J.). The Court agrees, and concludes that
petitioner's claim of "actual innocence" is unavailing.
Because the Court finds that Silvestre's petition was not timely
filed, the Court denies petitioner's motion to vacate his conviction. As
petitioner has not made a substantial showing of a denial of a
constitutional right, a certificate of appealability will not issue. See
28 U.S.C. § 2253, as amended by the AEDPA. The Clerk of the Court is
directed to close the above-captioned action.
It is SO ORDERED.