The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
The respondent moves to dismiss the instant petition for a writ of
habeas corpus brought pursuant to 28 U.S.C. § 2255, or
alternatively, 28 U.S.C. § 2241, on the grounds that petitioner
failed to comply with the statute of limitations imposed by the
Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, and
because relief under § 2241 is unavailable. For the reasons stated
below, respondent's motion is granted.
Silvestre signed the instant petition on January 4, 1999, and it was
received by the Pro Se Office on January 8, 1999. Silvestre raises the
following claims: that he was denied the right to testify on his own
behalf; that he was forced to appear in prison garb at trial; that the
trial judge erred in charging the jury at the close of evidence rather
than after summation; that a government witness improperly was promised
leniency in exchange for his testimony against Silvestre; that the
evidence was obtained by unlawful search and seizure; that there was
insufficient evidence on which to sustain a conviction; that he was
denied effective assistance of counsel at trial and on appeal; that his
defense counsel had conflicts of interest; that the District Court erred
in enhancing his sentence based on his possession of a dangerous weapon;
and that the District Court improperly calculated his sentence using
crack cocaine rather than powder cocaine.
On April 16, 1999, the respondent moved to dismiss the petition as
time-barred. In response to the motion to dismiss, Silvestre argues that
his failure to file the petition in a timely manner should be excused
because of difficulties with English and his inability to find a person
to assist him in preparing the petition.
The respondent argues that the petition is untimely under the AEDPA
since it was filed almost five years after the conclusion of Silvestre's
appeal to the Second Circuit, and almost three years after the effective
date of the AEDPA. Respondent correctly notes that because Silvestre's
conviction became final prior to the enactment of the AEDPA, Silvestre
had one year from the statute's effective date, until April 24, 1997, to
file a petition pursuant to § 2255. See Ross v. Artuz, 150 F.3d 97,
103 (2d Cir. 1998); Mickens v. United States, 148 F.3d 145, 148 (2d Cir.
1998). Therefore, respondent argues that since Silvestre's petition was
filed long after April 24, 1997, it should be dismissed as time-barred.
The respondent further asserts that Silvestre's petition for habeas
relief under § 2241 is misplaced because there is no change in the
case law that would render his conduct non-criminal, and because the
level of proof presented at trial was so overwhelming that Silvestre is
unable to prove his actual innocence. See Triestman v. United States,
124 F.3d 361, 363 (2d Cir. 1997) (holding that a federal prisoner who was
actually innocent, but who could not have effectively raised his claim of
innocence before he was procedurally barred from collateral relief, could
bring a habeas petition pursuant to § 2241).
The AEDPA was enacted on April 24, 1996. It amended 28 U.S.C. § 2255
to require that habeas petitions filed pursuant to that provision be
brought no later than one year after the date on which the judgment of
the conviction became final. See 28 U.S.C. § 2244 (d)(1)(A). The
Second Circuit, recognizing that this change effectively barred review of
convictions that became final more than one year prior to the effective
date of the AEDPA, created a one-year "grace period" from the enactment
of the AEDPA in which § 2255 petitions would be deemed timely filed.
See Ross, 150 F.3d at 103.
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 ...