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December 31, 2003.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge

On September 17, 2001, Jaime Juan Moreno-Castillo ("Moreno-Castillo"), whom I sentenced on May 4, 2000, now appears pro se and seeks a downward departure of that sentence. This "motion" was received by the Pro Se Office of this Court on September 27, 2001,*fn1 and because it was characterized as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, it was assigned to Judge Mukasey for review. For the following reasons, the writ is denied and the petition is dismissed.


  On March 13, 2000 Moreno-Castillo pled guilty to illegal re-entry into the United States, in violation of 8 U.S.C. § 1326. He was sentenced on May 4, 2000 to 57 months in prison and 3 years of supervised release. The sentence of 57 months was the minimum permitted under the sentencing guidelines. Moreno-Castillo did not appeal his judgment of conviction, which was entered on May 24, 2000, and thus his conviction became final on June 9, 2000, 10 business days after the date of entry of judgment. See Fed.R.App.P. 4(b)(1)(A)); Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000) (when "no appeal [is] filed . . . conviction [becomes] final . . . the day after his time to appeal expired."). As Moreno-Castillo filed what the Pro Se Office deemed a petition for habeas relief more than a year from the date the judgment became final, Judge Mukasey ordered on April 15, 2002 that Petitioner show cause for this delay. Pursuant to that order, petitioner filed an affirmation in which he claimed that he had been moved from one prison to another, and did not during that time have access to a suitable law library. Following his affirmation in response to Judge Mukasey's order, the case was re-assigned to me on February 11, 2003. The reasons for this delay escape me.

  Nonetheless, the gravamen of Moreno-Castillo's challenge is that his sentence should have been no more than 24 months, and thus the sentence of 57 months violated the rule of Apprendi v. New Jersey, in which the Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). Moreno-Castillo alleges that because his prior convictions were not "alleged in the formal indictment," his sentence could not be enhanced, as per the holding in Apprendi. In addition, he alleges that § 1326(b) is an "unconstitutional sentencing enhancement."*fn2 The government opposes the petition on three grounds: that Moreno-Castillo did not challenge his sentencing on direct appeal, that the instant petition is time-barred, and that the petition fails on the merits. II. DISCUSSION

 A. The Instant Petition is Time Barred under AEDPA

  Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for habeas corpus under § 2255 must generally be brought within 1 year of the date the judgment of conviction became final. See 28 U.S.C. § 2255. Accordingly, Moreno-Castillo was required to file his petition no later than June 9, 2001. However, the statute also provides that the 1-year limitations period will run from a later date in three other situations, only one of which is implicated by Moreno-Castillo's claims.*fn3 If the Supreme Court recognizes a new right after the judgment of conviction becomes final and the newly recognized right is made retroactively applicable to cases on collateral review, a petitioner's claim based on that right must be brought within 1 year of the date the Supreme Court initially recognized the right. See id. However, given that Apprendi was decided on June 26, 2000, even under this situation, Moreno-Castillo was required to file by June 26, 2001, almost three months before he filed his petition. (In addition, as discussed more fully below, this alternative date for the statute of limitations is inapplicable because it has been held that Apprendi does not apply retroactively on collateral review.)

  The Second Circuit has held that equitable tolling applies to the AEDPA time limits for habeas petitions, but that it is appropriate only "in rare and exceptional circumstances." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "To merit application of equitable tolling, the petitioner must demonstrate that he acted with reasonable diligence during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances beyond his control prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (quotations and citations omitted). In response to Judge Mukasey's order to show cause as to why his petition should not be time-barred, Moreno-Castillo cited three reasons for the delay: 1) he had been transferred from one prison to another, 2) the law libraries at the prisons were insufficient for him to pursue his legal proceedings, 3) his lack of English skills hindered his ability to prepare the petition. However, courts in this district have rejected each of these three bases for equitably tolling the AEDPA limitations period. See Huang v. United States, No. 03 Civ. 3755, 2003 WL 22272584, at *3 (S.D.N.Y. Oct. 2, 2003) ("The district courts in the Southern District have unanimously found that inability to speak English and lack of familiarity with the legal system are not `rare and exceptional' circumstances, and thus are not grounds for equitable tolling."); German v. United States, 209 F. Supp.2d 288, 293 (S.D.N.Y. 2002) (inability to understand English and the lack of a law library in Spanish are not "extraordinary" circumstances that support equitable tolling); Tan v. Bennett, No. 00 Civ. 6413, 2001 WL 823869, at *2 (S.D.N.Y. July 20, 2001) (lack of English proficiency does not justify equitable tolling) (citing cases); Also, prison transfers and unavailability of legal libraries is not sufficiently extraordinary to merit equitable tolling. Martinez v. Kuhlmann, No. 99 Civ. 1094, 1999 WL 1565177, at *5 (S.D.N.Y. Dec. 3, 1999) ("An inability to speak, read or write English, alone or in combination with difficulty obtaining assistance in legal research from other prisoners or prison staff, is not sufficiently extraordinary to merit equitably tolling the AEDPA's one-year statute of limitations, since these are disabilities common to many prisoners."); Montalvo v. Strack, No. 99 Civ. 5087, 2000; WL 718439, at *2 (S.D.N.Y. June 5, 2000) ("Being transferred twice during period of running of statute of limitations was not an impediment to filing a petition in a timely manner."). Thus, equitable tolling is not appropriate under these circumstances and thus Moreno-Castillo's habeas petition is untimely.

 B. Moreno-Castillo's Petition Fails Because Apprendi is not Retroactively Applicable

  Although the Supreme Court did not indicate whether the rule it formulated in Apprendi was applicable retroactively to cases on collateral review, the Second Circuit has held that Apprendi does not apply retroactively to habeas petitions under § 2255. See Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003). In Coleman, the Court considered whether Apprendi fit within either of the two exceptions to the general rule against non-retroactivity from Teague v. Lane, 489 U.S. 288 (1989). See Coleman, 329 F.3d at 90. "Under Teague, new rules of constitutional criminal procedure do not apply retroactively on collateral review unless they fall into either of two categories: (1) new rules that `place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense'; or (2) `new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding.'" United States v. Mandanici, 205 F.3d 519, 525 (2d Cir. 2000) (quoting Sawyer v. Smith, 497 U.S. 227, 241-42 (1990)). In Coleman, the Second Circuit held that neither Teague exceptions apply to Apprendi, to rescue Apprendi from the anti-retroactivity rule. 329 F.3d at 88. The court concluded thatApprendi was not a "new watershed rule" but rather "merely `clarified and extended' the scope of two well-settled principles of criminal procedure: the defendant's right to a jury trial and the government's burden of proof beyond a reasonable doubt." Id. at 89. Thus, even if Moreno-Castillo is correct that his sentence violated Apprendi, this decision offers no basis for habeas relief as he was sentenced before the Supreme Court decided Apprendi.

 C. Meritless

  In any event, Moreno-Castillo's claim lacks merit. In sum, he claims that the sentence imposed above the 2 years provided in 8 U.S.C. § 1326(a) was illegal because "the indictment did not allege that he had been convicted and categorized as an `aggravated felon[]" and "[f]urthermore, petitioner's prior conviction [was] not in the indictment as an element of the offense. Moreno-Castillo refers in his petition to the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and correctly describes the holding in that case, namely that "the enhanced penalty in § 1326(b)(2) is a sentencing factor, not an element of a separate offense." Pet. at 6. However, he fails to appreciate that the import of this case is not helpful to his cause. As the Court explained:
We conclude that the subsection [§ 1326(b)(2)] is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution require the Government to charge the factor that it mentions, an earlier conviction, in the indictment.
Almendarez-Torres, 523 U.S. at 226-27. In sum, the absence of a reference in the indictment to his prior conviction for an aggravated felony does not render his sentence of more than 2 years invalid.*fn4 Despite the tension between Almendarez-Torres and Apprendi — indeed Justice Stevens writing for the majority in Apprendi stated that it was "arguable that Almendarez-Torres was incorrectly decided," see Apprendi, 530 U.S. at 489-90 — the Court in Apprendi carved out an exception for Almendarez-Torres. See United States v. Mercedes, 287 F.3d 47, 58 (2d Cir. 2002) ("Almendarez-Torres thus stands as a `narrow exception' to the general rule announced in Apprendi that `any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'"); see also Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (emphasis added)).


  For the foregoing reasons, Moreno-Castillo's habeas corpus petition pursuant to 28 U.S.C. § 2255 is denied and the petition is dismissed. The Clerk of the Clerk is instructed ...

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