ORDER

JAMES S. MOODY, Jr., District Judge.

Petitioner proceeding pro se filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 motion") (CV Dkt. 1), and a memorandum of law in support of the § 2255 motion. Petitioner challenges his 2004 guilty plea convictions for conspiracy to distribute and to possess with intent to distribute 500 grams or more of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime (CR Dkts. 28, 47). Petitioner contends that his trial counsel rendered ineffective assistance by failing to inform him that his guilty plea carried a risk of deportation.

The Court has undertaken a preliminary review of the § 2255 motion and memorandum of law, together with the record of the prior criminal proceedings, as required by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. After doing so, the Court concludes that the § 2255 motion is due to be summarily dismissed without the necessity of a response from Respondent or an evidentiary hearing because it plainly appears from the face of the § 2255 motion, memorandum of law, and the underlying criminal proceedings that Petitioner is entitled to no relief because the § 2255 motion is time-barred.

DISCUSSION

The timeliness of Petitioner's § 2255 motion is governed by 28 U.S.C. § 2255(f). § 2255 (f) provides:

28 U.S.C. § 2255(f).

On January 30, 2004, Petitioner pleaded guilty pursuant to a written plea agreement (CR Dkts. 24, 28). On June 22, 2004, he was sentenced to 135 months imprisonment to be followed by 60 months supervised release (CR Dkt. 46). The Court entered its judgment on June 24, 2004 (CR Dkt. 47). Petitioner did not file a direct appeal. Therefore, the judgment of conviction became final on July 9, 2004, upon expiration of the time for Petitioner to file a direct appeal. See Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000) (when defendant does not file a direct appeal, conviction becomes final 10 business days after the district court's judgment is entered) (citing Fed. R.App. P. 4(b)(1)). Petitioner had until July 9, 2005, in which to file his § 2255 motion. Petitioner did not file the instant § 2255 motion until February 16, 2012 (CV Dkt. 1 at 8). Consequently, his § 2255 motion is untimely under § 2255(f)(1).

Petitioner argues that his § 2255 motion is timely under § 2255(f)(3) because it was filed within one year from the June 29, 2011 decision in United States v. Orocio, 645 F.3d 630 (3rd Cir. 2011) which held that the Supreme Court's decision in Padilla v. Kentucky1 is retroactively applicable on collateral review (CV Dkt. 2 at 3-6). Id. at 634. Under 2255(f)(3), the one-year limitation period to file a § 2255 motion runs from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." (emphasis added). The right asserted by Petitioner, a criminal defendant's right to be informed whether his plea carries a risk of deportation, was "initially recognized" in the Supreme Court's decision in Padilla on March 31, 2010. Therefore, Petitioner's § 2255 motion is untimely under § 2255(f)(3) because it was filed more than one year after the date Padilla was decided.2

Moreover, Petitioner's conviction was final long before the Supreme Court's ruling in Padilla. Therefore, to obtain the benefit of the Padilla ruling, Petitioner must establish that the rule announced in Padilla is retroactively applicable to convictions on collateral review. See Teague v. Lane, 489 U.S. 288 (1989). The Third Circuit has held that Padilla is retroactive. See Orocio, 645 F.3d 630. The Seventh and Tenth Circuits, however, have held that Padilla is not retroactive. Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011) (Padilla not retroactive); United States v. Chang Hong, ___ F.3d ___, No. 10-6294, 2011 U.S. App. LEXIS 18034, 2011 WL 38057630 (10th Cir. Aug. 30, 2011) (same). See also United States v. Hernandez-Monreal, 404 F. App'x 714, 715, n.* (4th Cir. 2010) ("[N]othing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review."). This Court finds the opinions by the Seventh and Tenth Circuits persuasive, and concludes that Padilla created a new rule that is not retroactive to cases on collateral review. Consequently, because Padilla does not apply retroactively to cases on collateral review, the limitation period under § 2255(f)(3) does not apply to Petitioner's § 2255 motion. Therefore, Petitioner's § 2255 motion was not filed within one year of any of the qualifying events described in § 2255(f).

Conclusion

For the foregoing reasons, Petitioner's § 2255 motion is time-barred.

ACCORDINGLY, the Court ORDERS that:

1. Petitioner's motion to vacate, set aside, or correct sentence (CV Dkt. 1) is DISMISSED as time-barred.

2. The Clerk shall terminate all pending motions, and close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue. . .only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To merit a certificate of appealability, Petitioner must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the § 2255 motion is clearly time-barred, and his claim is without merit, Petitioner cannot satisfy either prong of the Slack test. 529 U.S. at 484.

Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis because such an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). Petitioner shall be required to pay the full amount of the appellate filing fee pursuant to § 1915(b)(1) and (2).