* This order and judgment is not binding precedent, except under the

doctrines of res judicata, collateral estoppel, and law of the case. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 17 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Respondent - Appellee, No. 02-2015

v. (D. New Mexico) HECTOR ALVARADO-CARRILLO,

Petitioner - Appellant. (D.C. Nos. CIV-01-1083-LH/WWD, CR-95-104-LH)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered submitted without oral argument. Hector Alvarado-Carrillo, a federal prisoner procee ding pro se, seeks a certificate of appealability (a “COA”) to appeal th e denial of his 28 U.S.C. § 22551 We have been unable to identify anything in the appellate record

conclusively establishing the date of the entry of judgment against Mr. AlvaradoCarrillo. This date, of course, is important for d etermination of whether Mr. Alvarado-Carrillo’s petition is, in fact, untimely. We note that in one of the district court’s orders in this case, the court states: “[Mr. Alvarado-Carrillo’s] criminal judgment was entered November 19, 1977.” Rec. doc. 4, at 1 (unpaginated) (Order, filed Sept. 24, 2001). GivenMr. Alvarado-Carrillo’s reference to his plea and sentencing as occurring i n June and September of 1997, respectively, we take the district court’s referenc e to 1977 to be a typographical error and presume that the date of the entry of Mr. Alvarado-Carrillo’s criminal judgment was, in fact, November 19, 1997. -2- habeas corpus petition. Because we determine, like the district court, that Mr. Alvarado-Carrillo filed his petition in an untimelymanner, we deny a COA.

I. BACKGROUND On June 18, 1997, Mr. Alvarado-Carrillo pleaded gui lty to violation of 21 U.S.C. § 846 (conspiracy to commit a narcotics offe nse). Pursuant to that guilty plea, the district court, on September 2, 1997, sen tenced Mr. Alvarado-Carrillo to a term of imprisonment of 108 months. Apparently the judgment against Mr. Alvarado-Carrillo was entered on November 19, 1997. 1 Mr. Alvarado-Carrillo did not file a direct appeal but, on September 17, 2001, did file the instant § 2255 habeas petition. In his petition, Mr. AlvaradoCarrillo asserts that (1) the district court erred in sentencing him, in violation of the dictates of United States v. Apprendi , 530 U.S. 466 (2000), to a term of imprisonment in excess of a five-year statutory max imum, (2) the district court2 We have yet to determine the retroactive applicab ility of Apprendi and

thus have yet to determine whether Apprendi restarts the § 2255 time clock. -3- erred in failing to ensure that he entered his pleain a voluntary and knowing fashion, and (3) his counsel was ineffective in fai ling to prevent these errors. The district court did not reach the merits of Mr. Alva rado-Carrillo’s claims; rather the district court denied Mr. Alvarado-Carrillo’s h abeas petition as “untimely.” Rec. doc. 6 (Final Order of Dismissal, filed Dec. 1 2, 2001). Mr. AlvaradoCarrillo timely filed this appeal.

II. DISCUSSION Under § 2255, a petitioner generally must file a § 2255 petition within one year of the later of (1) “the date on which the jud gment of conviction becomes final” or (2) “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recogni zed by the Supreme Court and made retroactively applicable to cases on collatera l review.” Here, then, Mr. Alvarado-Carrillo’s time to file his § 2255 petitio n would appear to have expired one year after November 29, 1997 (the date on which his conviction was entered plus the ten days permitted for filing the notification of intent to appeal, see Fed. R. App. P. 4(b)(1)(A) ) or, at best, 2 one year after June 26, 2000 (the date on which the Supreme Court issued the Apprendi decision). Since Mr. Alvarado--4-

Carrillo did not file this habeas petition until Se ptember 17, 2001, more than one year after both November 29, 1997 and June 26, 2000 , Mr. Alvarado-Carrillo’s petition appears untimely. Mr. Alvarado-Carrillo recognizes the hurdle present ed by the § 2255 time bar; Mr. Alvarado-Carrillo proposes to overcome that hurdle by application of equitable tolling. Under the doctrine of equitable tolling, we will occasionally toll the time bar facing a habeas petitioner, thoug h “only in rare and exceptional circumstances.” Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation marks omitted); United States v. Willis , 202 F.3d 1279, 1281 n.3 (10th Cir. 2000) (considering the application of equitabl e tolling in a particular § 2255 case) . A necessary prerequisite to any application of equitable tolling, however, is a finding that “[the] petitioner [has] diligentl y pursue[d] his federal habeas claims.” Gibson , 232 F.3d at 808; accord Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000) (“[T]his equitable remedy is only available when an inmate [1] diligently pursues his claims and [2] demonstrates that the failure to timely file was caused by extraordinary circumstances beyond hi s control.”). Mr. Alvarado-Carrillo seeks application of the equi table tolling doctrine based upon his status as a “non-English speaking . . . Mexican citizen,” lack of access to adequate “legal library materials and [ot her] legal assistan[ce],” and “lack[ of] an understanding of the law.” Rec. doc. 5, at 7-8 (Motion for-5-

Permission to File a Response as to United States M agistrate Judge ‘Sua Sponte’ Raising the Defense of Procedural Default, filed No v. 7, 2001). While we recognize that at least some of the hardships noted by Mr. Alvarado-Carrillo no doubt inhibited his ability to timely file his § 22 55 petition, we conclude that equitable tolling should not here apply to excuse M r. Alvarado-Carrillo’s otherwise untimely filing. See Gibson , 232 F.3d at 808 (“[A] claim of insufficient access to relevant law . . . is not en ough to support equitable tolling.”); Marsh , 223 F.3d at 1220-21 (“[I]t is well established th at ignorance of the law, even for an incarcerated pro se petitioner , generally does not excuse prompt filing.”) (internal quotation marks omitted); Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998) (holding that equitable tollin g will not apply where a petitioner “simply did not know about the [relevantlaw] until it was too late”: “It is not enough to say that the [prison] facility lac ked all relevant statutes and case law or that the procedure to request specific mater ials was inadequate.”).

III. CONCLUSION Having reviewed Mr. Alvarado-Carrillo’s appellate b rief, the district court’s order, and the appellate record, and having liberally construed all of the materials submitted by Mr. Alvarado-Carrillo, see Haines v. Kerner , 404 U.S.-6-

519, 520-21 (1972) (per curiam) , we DENY Mr. Alvarado-Carrillo’s application for a COA and DISMISS this appeal. Entered for the Court,

Robert H. Henry Circuit Judge