RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

I. INTRODUCTION

On April 19, 2012, federal inmate Harold Olenda Peagler ("Peagler") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. Peagler challenges his 2006 guilty-plea convictions and resulting sentence for various federal firearms offenses. The government argues that Peagler's § 2255 motion is time-barred because it was filed after expiration of the one-year limitation period. Doc. No. 4. The court concludes that the government is correct and that the § 2255 motion should be denied because it was not filed within the time allowed by federal law.

II. DISCUSSION

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

28 U.S.C. § 2255(f).

On October 12, 2006, Peagler pled guilty to two counts of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, all in violation of 18 U.S.C. § 922(g)(1). On February 1, 2007, the district court sentenced Peagler to 120 months in prison. Judgment was entered by the district court on February 5, 2007.

Peagler appealed, and on August 3, 2007, the Eleventh Circuit issued an opinion affirming his convictions and sentence. United States v. Peagler, 238 Fed. App'x 577 (11th Cir. 2007). The mandate of the appellate court was issued on September 4, 2007. Peagler did not seek certiorari review in the United States Supreme Court. By operation of law, his conviction became final on November 2, 2007, 90 days after the Eleventh Circuit's issuance of its August 3, 2007, opinion.1 Under 28 U.S.C. § 2255(f)(1), Peagler had until November 3, 2008, the first business day after November 2, 2008, to file a timely § 2255 motion. His § 2255 motion filed on April 19, 2012, is untimely under § 2255(f)(1).

Peagler contends he is entitled to retroactive application of the United States Supreme Court's holdings in Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012), and Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012), which he says renders his § 2255 motion timely under 28 U.S.C. § 2255(f)(3).2 Lafler and Frye, both of which the Supreme Court decided on March 21, 2012 (less than a year before Peagler filed his § 2255 motion), recognized that the Sixth Amendment guarantees a defendant the right to effective assistance of counsel during the plea-bargaining process. See 132 S.Ct. at 1384; 132 S.Ct. at 1405. Peagler alleges that his trial counsel was ineffective in plea negotiations because he prevented Peagler from consenting to a plea agreement drafted by the Government that provided for a more favorable sentence than the one he received.

Notwithstanding Peagler's attempt to "restart" the limitation period via § 2255(f)(3), the Eleventh Circuit has recognized that neither Lafler nor Frye applies retroactively. See In Re Perez, 682 F.3d 930, 932-33 (11th Cir. 2012). In Perez, the Eleventh Circuit held Lafler and Frye did not set forth new rules of constitutional law because those cases are "merely an application of the Sixth Amendment right to counsel, as defined in Strickland [v. Washington, 466 U.S. 668, 686 (1984)], to a specific factual context." 682 F.3d 930 at 932. The court in Perez concluded, "[B]ecause we cannot say that either Lafler or Frye `breaks new ground or imposes a new obligation on the State or Federal Government,' they did not announce new rules." Id. at 933. Because the Supreme Court in Lafler and Frye recognized no new constitutional right, those decisions are not retroactive and there is no basis for restarting the limitation period under § 2255(f)(3). Therefore, § 2255(f)(3) does not control the limitation period for Peagler to file his § 2255 motion.

Finally, Peagler argues that, under Holland v. Florida., 560 U.S. 631 (2010), he is entitled to equitable tolling of the limitation period because, he says, his appellate counsel never notified him that the Eleventh Circuit affirmed his convictions and sentence on August 3, 2007. Doc. No. 8 at 1-2. According to Peagler, his attorney's failure to notify him of the Eleventh Circuit's decision prevented him from seeking certiorari review in the Supreme Court. Id. at 2.

The limitation period in federal habeas proceedings (28 U.S.C. §§ 2254 and 2255) may be equitably tolled on grounds apart from those specified in the habeas statutes "when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). In Holland, cited by Peagler, the Supreme Court confirmed that the limitation is subject to equitable tolling where a petitioner "shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." 560 U.S. at 649; see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). "The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner." Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).

Peagler falls far short of demonstrating he exercised the diligence required to merit equitable tolling. Peagler appealed to the Eleventh Circuit shortly after his February 1, 2007, sentencing. The Eleventh Circuit affirmed his convictions and sentence on August 3, 2007. Peagler alleges no facts indicating any efforts on his part to keep abreast of his appeal from the time it was filed until filing his § 2255 motion. He does not assert that he ever attempted to contact his appellate counsel or the Eleventh Circuit to determine the status of his appeal. He makes no claim he received any assurances of notification from his appellate counsel or the appellate court. The record shows that he filed his § 2255 motion over five years after he took his direct appeal. "Equitable tolling is not intended as a device to rescue those who inexcusably sleep upon their rights." United States v. Ramos-Maritinez, 638 F.3d 315, 323 (1st Cir. 2011). Peagler's lack of diligence precludes equitable tolling. See Pace, 544 U.S. at 419.

Because Peagler did not file his § 2255 motion until April 19, 2012, his motion is time-barred and this court may not address the merits of his claims.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U.S.C. § 2255 motion be denied as it was not filed within the controlling federal limitation period and that this case be dismissed with prejudice. It is further

ORDERED that the parties shall file any objections to this Recommendation on or before September 9, 2014. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).