                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          DEC 13 1999
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Defendant - Appellee,
 vs.                                                    No. 99-1306
                                                    (D.C. No. 99-D-782)
 MARIO GUILLERMO CORDOVA,                                (D. Colo.)

           Plaintiff - Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Cordova, an inmate appearing pro se, seeks to appeal from the denial

of his 28 U.S.C. § 2255 motion. He pled guilty to distribution of narcotics, 21

U.S.C. § 841(a), and was sentenced to 80 months imprisonment and four years of

supervised release thereafter. The judgment was entered and became final on July

24, 1997. Almost two years later, on April 20, 1999, Mr. Cordova filed a § 2255


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
motion challenging his sentence on six grounds. The district court dismissed all

of the claims finding that four of them were time barred as filed outside the one-

year AEDPA limitation period, 28 U.S.C. § 2255(1), and the other two should

have been brought in a § 2241 motion challenging the execution of the sentence.

On appeal, Mr. Cordova argues that (1) the one-year limitation period should not

begin until a non-English speaking prisoner becomes sufficiently capable of using

the language to mount a challenge to his sentence and (2) the Suspension Clause

is violated when a prisoner is prevented from filing his first-ever habeas petition.

He seeks a remand so the district court may adjudicate the merits of all his claims.

We affirm and agree with the district court that the other two claims are not

cognizable under § 2255.

      The denial of a § 2255 motion as time barred is a legal ruling we review de

novo. See United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). Under

AEDPA, a § 2255 habeas petition must be brought within one year of “the date on

which the judgment of conviction becomes final.” 28 U.S.C. § 2255(1). Mr.

Cordova does not dispute that the judgment became final almost two years before

he filed his petition. Rather, he argues that the limitations period should be

equitably tolled because of his lack of knowledge of English.

      The one-year limitations period in § 2255 is not a jurisdictional hurdle and

can be tolled “when a movant untimely files because of extraordinary


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circumstances that are both beyond his control and unavoidable even with

diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Such

circumstances exist when “the petitioner has ‘in some extraordinary way . . . been

prevented from asserting his or her rights.’” Miller v. New Jersey State Dep’t of

Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (dealing with one year limitation

period of § 2244) (citation omitted). Moreover, petitioner must also plead with

“specificity regarding the alleged lack of access and the steps he took to diligently

pursue his federal claims.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)

(interpreting § 2244).

      Lack of familiarity with the English language does not rise to the level of a

rare or exceptional circumstance which would warrant equitable tolling of the

AEDPA limitations period. See Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.

1999) (noting that unfamiliarity with the law due to illiteracy does not toll

limitations period). Moreover, the record contradicts Mr. Cordova’s unsupported

assertion as to his language skills. Mr. Cordova signed a “Statement By

Defendant In Advance of Plea of Guilty” written in both English and Spanish. In

both versions, he specifically noted that “I can read and understand the English

language.” Mr. Cordova responds by asserting that these statements are

not in his handwriting and were written by someone else. Be that as it may, we

reject the contention that the one-year limitation period is tolled indefinitely until


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a prisoner becomes sufficiently familiar with the English language to file a habeas

petition. Such an interpretation would go far beyond the limited exception that

equitable tolling provides based upon case-specific facts.

      Mr. Cordova also claims that the one-year limitation on filing a § 2255 first

habeas petition violates the Suspension Clause. This issue was addressed in

Miller v. Marr, 141 F.3d 976 (10th Cir. 1998) in regard to § 2254 petitions and

applies equally in the present case. “Whether the one-year limitation period

violates the Suspension Clause depends upon whether the limitation period

renders the habeas remedy ‘inadequate or ineffective’ to test the legality of

detention.” Id. at 977 (citation omitted). Mr. Cordova bears the burden of

proving inadequacy or ineffectiveness. Id.

      The remedy afforded by § 2255 is not rendered inadequate or ineffective

merely because an individual is procedurally barred from filing a habeas petition.

See Triestman v. United States, 124 F.3d 361, 376 (2d Cir 1997) (quoting In re

Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)). Rather, a habeas petitioner must

show that he is unable to use § 2255, and a failure to otherwise hear his claim

would raise serious constitutional questions. Mr. Cordova has failed on both

points. He was unable to successfully employ § 2255 because of his lack of

diligence in pursuing his federal claims, and has failed to assert any serious

constitutional questions arising from the denial of his habeas petition. Miller, 141


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F.3d at 978. We also note that Mr. Cordova does not assert his innocence in the

underlying action, but only asks to be resentenced. Id.

      We DENY a certificate of appealability and DISMISS the appeal.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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