ORDER

JAMES D. WHITTEMORE, District Judge.

Before the Court are Petitioner's motion to vacate pursuant to 28 U.S.C. § 2255 (CV Dkt. 1) and memorandum of law in support of the Section 2255 motion (CV Dkt. 2), the Government's Motion to Dismiss (CV Dkt. 5), and Petitioner's response in opposition (CV Dkt. 6). Upon consideration, the Government's Motion to Dismiss is GRANTED, and Petitioner's Section 2255 motion is DISMISSED.

PROCEDURAL BACKGROUND

In June 2007, Petitioner was charged by Indictment with one count of possession with intent to distribute 500 grams or more of methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A)(viii) and Title 18, United States Code, Section 2 (CR Dkt. 1). In November 2007, a jury found Petitioner guilty as charged (CR Dkt. 82). In January 2008, Petitioner was sentenced to one hundred eighty-eight (188) months imprisonment to be followed by sixty (60) months of supervised release (CR Dkts. 101, 102).

Petitioner appealed. On February 12, 2009, the United States Court of Appeals for the Eleventh Circuit affirmed (CR Dkt. 128); United States v. Rodriguez, 312 Fed. Appx. 205 (11th Cir. 2009).

On May 9, 2013, this Court received Petitioner's Section 2255 motion and memorandum of law (CR Dkts. 135, 136; CV Dkts. 1, 2). However, the Section 2255 motion was dated "June 21, 2009" (CV Dkt. 1 at p. 7), and the memorandum included a Certificate of Service that indicated, in pertinent part, that "a copy of said motion was mailed to the United States Attorney office on June 21, 2009." (CV Dkt. 2 at p. 12). The Court therefore directed the Government to file a limited response addressing solely the timeliness of the Section 2255 motion (CV Dkt. 3). The Government filed its Motion to Dismiss, arguing that the Section 2255 motion is time-barred (CV Dkt. 5), and Petitioner filed his response in opposition, arguing that his Section 2255 motion is timely because he delivered it to prison officials for mailing on June 21, 2009 (CV Dkt. 6).

DISCUSSION

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was enacted on April 24, 1996. The AEDPA added a new statutory limitations period to 28 U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir.), cert denied, 531 U.S. 971 (2000). Section 28 U.S.C. § 2255(f) provides:

28 U.S.C.§ 2255(f). See also Pruitt v. United States, 274 Y.3d 1315, 1317 (11th Cir. 2001). "[F]or federal criminal defendants who do not file a petition for certiorari with [the United States Supreme Court] on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires." Clay v. United States, 537 U.S. 522, 532 (2003). See also Kaufmann v. United States, 282 F.3d 1336, 1339 (11th Cir. 2002) (holding that a judgment becomes "final" when the time for filing a petition for writ of certiorari expires).

After the Eleventh Circuit affirmed Petitioner's conviction on February 12, 2009, Petitioner did not seek certiorari review in the United States Supreme Court. Therefore, his judgment of conviction became final on May 13, 2009, when the ninety-day period for seeking certiorari review expired. Clay v. United States, 537 U.S. at 532; Kaufmann v. United States, 282 F.3d at 1339.

Petitioner therefore had one year from that date, until May 13, 2010, to timely file a Section 2255 motion. The Section 2255 motion and supporting memorandum were not received by this Court until May 9, 2013, nearly three years after the expiration of the one-year limitation period. Consequently, the Section 2255 motion is time-barred unless 1) it is considered filed on June 21, 2009, the date on which the Section 2255 motion and memorandum of law allegedly were signed and (according to Petitioner) delivered to prison officials for mailing to the Court, or 2) equitable tolling applies.

This case turns on whether Petitioner is entitled to the benefit of the prison "mailbox rule." In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court held that where a prisoner has "done all that could reasonably be expected to get the [document] to its destination" within the required time it should be considered `filed' when handed to a prison official for mailing. Houston, 487 U.S. at 270 (citation omitted). The "mailbox rule" applies to Section 2255 motions. Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999). In this circuit, the mailbox rule applies even when the motion "is never received or filed by the court." Gracey v. United States, 131 Fed.Appx. 180 (11th Cir. 2005) (quoting Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001)).

The "mailbox rule" is codified in Rule 3(d), Rules Governing Section 2255 Proceedings for the United States District Court, which states:

If a prisoner follows these procedures, the burden shifts to "prison authorities to prove the date a prisoner delivered his documents to be mailed." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (citing Garvey v. Vaughn, 993 F.2d 776, 781 (11th Cir. 1993)). Absent evidence to the contrary, district courts must assume that a prisoner's motion was delivered to prison authorities the day he signed it. Id.

The Court concludes that Petitioner is not entitled to the benefit of the mailbox rule with respect to his Section 2255 motion and memorandum of law because he did not comply with the requirements of Rule 3(d). Neither the Section 2255 motion nor the memorandum of law includes a declaration pursuant to the mailbox rule, setting forth the date Petitioner delivered the motion to prison officials for mailing and a statement that Petitioner prepaid the postage (see CV Dkts. 1, 2). Although the memorandum includes a Certificate of Service which states, in pertinent part, that "a copy of said motion was mailed to the United States Attorney office on June 21, 2009[,]" the Certificate of Service does not indicate that the motion and memorandum were delivered to prison officials for mailing and that postage has been prepaid (see CV Dkt. 2 at p. 12). Additionally, Petitioner's sworn statement in his response indicates that he "handed his legal mail to a [sic] officer at Coleman Low institution [sic] in the year of 2009 ...," but is silent as to 1) the exact date on which the legal mail was delivered, 2) the nature of the legal mail and to whom it was sent,1 and 3) whether postage was prepaid.2 Consequently, because Petitioner has failed to provide a declaration that complies with Rule 3(d), he is not entitled to the presumption that his Section 2255 motion and memorandum of law were filed on June 21, 2009, pursuant to the mailbox rule.

Even if Petitioner was entitled to the presumption, that presumption is rebutted by ample evidence establishing that Petitioner did not deliver his Section 2255 motion and memorandum of law to prison officials for mailing on June 21, 2009. First, this Court has no record of receiving a Section 2255 motion or memorandum of law from Petitioner until May 9, 2013.3 Second, in making the determination whether Petitioner delivered his Section 2255 motion and memorandum for mailing on June 21, 2009, this Court "may take into account any and all relevant circumstances, including any lack of diligence on the part of [Petitioner] in following up in a manner that would be expected of a reasonable person in his circumstances. . . ." Allen v. Culliver, 471 F. 3d at 1198. Petitioner contends that he "mailed his Motion for post-convion [sic] relief off in June [sic] 21 [sic] 2009, and since then his family members has [sic] called the clerk of court on many occasions to get a status up [sic] date, but how ever [sic] [Petitioner] just recently became aware of the fact that his Motion was just recently filed in the court In [sic] the year of 2013." (CV Dkt. 6 at p. 1). He does not, however, provide 1) the names of the family members who allegedly called the clerk, 2) the dates on which the family members allegedly called the clerk, 3) the information the family members received from the clerk, and 4) the information the family members provided to Petitioner regarding the status of his Section 2255 motion. Additionally, Petitioner does not allege, and the Court's records do not reflect, that Petitioner himself ever attempted to contact the Court in any manner to inquire about the status of his Section 2255 motion during the nearly four year period after he allegedly mailed the motion and memorandum. A reasonably diligent person in Petitioner's circumstances, having received no information that his Section 2255 motion had been received by the Court, would have inquired with the Court about the matter, and would have documented his efforts to communicate with the Court after his family members "called the clerk of court on many occasions to get a status update." Therefore, Petitioner's substantial lack of diligence in following up on the status of his Section 2255 motion weighs heavily in favor of a finding that the Section 2255 motion and memorandum of law were not delivered to prison officials for mailing on June 21, 2009.

Third, and perhaps most telling, a significant portion of the language in Petitioner's memorandum of law clearly was pulled nearly verbatim from the opinion in United States v. Delgado, 631 F.3d 685 (5th Cir. 2011), that was issued on January 19, 2011.4 Because Petitioner would have had to have read Delgado before delivering his Section 2255 motion and memorandum of law to prison authorities for mailing, the Court finds that Petitioner did not deliver those documents to prison officials for mailing to this Court on June 21, 2009. Rather, the Court finds that Petitioner mailed those documents to this Court in May 2013.5

In sum, Petitioner is not entitled to the benefit of the mailbox rule, and he presents no credible evidence the he actually delivered his Section 2255 motion and memorandum of law to prison officials for mailing on June 21, 2009. Ample evidence strongly suggests that Petitioner did not mail his Section 2255 motion and memorandum until May 2013. The Court therefore finds that Petitioner did not deliver a Section 2255 motion and memorandum to prison officials on June 21, 2009. Accordingly, the Section 2255 motion is time-barred unless Petitioner can demonstrate that he is entitled to equitable tolling of the limitation period.

The limitations period under § 2255(f) is subject to equitable tolling. See Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (holding that "[e]quitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence"). Petitioner, however, has not alleged or shown any extraordinary circumstances to warrant equitable tolling. Consequently, the Section 2255 motion is time-barred.

EVIDENTIARY HEARING

The Court concludes that Petitioner has offered no reason to believe that an evidentiary hearing would help him prove that he delivered his Section 2255 motion and memorandum of law to prison officials for mailing on June 21, 2009. Accordingly, Petitioner is not entitled to an evidentiary hearing. See Drew v. Department of Corrections, 297 F.3d 1278, 1293 n.7 (11th Cir. 2002) (Petitioner's allegations that he sent letters to the Clerk's office and pursued his case diligently was "not enough to warrant an evidentiary hearing in the absence of any specific factual proffer or evidentiary support, especially when the evidence that has been presented undermines the petitioner's claim.") (citations omitted).

Accordingly, it is ORDERED that:

1. The Government's Motion to Dismiss (CV Dkt. 5) is GRANTED. The motion to vacate pursuant to 28 U.S.C. § 2255 (CV Dkt. 1) is DISMISSED as time-barred.

2. The Clerk shall enter judgment against Petitioner, 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 (CO A). 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 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 COA, 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). Petitioner cannot make the requisite showing because he cannot demonstrate that reasonable jurists would debate whether the Court's ruling that the Section 2255 motion is time-barred was correct, or whether the Section 2255 motion stated a substantial denial of a constitutional right. And because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.

DONE AND ORDERED.