ORDER

JAMES S. MOODY, Jr., District Judge.

THIS CAUSE comes before the Court upon Petitioner Hector Meza Jr.'s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (CV Doc. 1) filed on March 15, 2016. Upon review of the motion and Petitioner's response to the Court's order to show cause, the Court concludes that Petitioner's motion should be dismissed as time-barred.

BACKGROUND

Petitioner pleaded guilty pursuant to a plea agreement to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). (CR Docs. 23-27). On March 20, 2012, the Court sentenced Petitioner to 188 months' imprisonment followed by 60 months' supervised release. (CR Doc. 30). Petitioner did not file a direct appeal. Therefore, his judgment of conviction became final under § 2255(f)(1) on April 4, 2012, when the time for filing a direct appeal expired. See Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (stating that "when a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires"); Fed R. App. P. 4(b)(1)(A)(i) (allowing a criminal defendant fourteen days after the entry of either the judgment or the order being appealed to file a notice of appeal).

Petitioner filed the present motion on March 15, 2016, almost four years after his judgment of conviction became final. (CV Doc. 1). Petitioner raised three grounds for relief, including that (1) he was improperly sentenced under the Armed Career Criminal Act ("ACCA"), § 924(e), under the 2013 decisions in Descamps v. United States, 133 S.Ct. 2276 (2013), and Donowa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir. 2013), (2) he was entitled to relief under the 2013 decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), and (3) his counsel was ineffective for failing to object to the use of Petitioner's prior convictions for application of the ACCA. Thus, it appeared that Petitioner's motion was untimely under § 2255(f)(1). The Court issued an order to show cause, directing Petitioner to address why his motion should not be dismissed as time-barred. Petitioner filed a response on April 18, 2016. (CV Doc. 3).

DISCUSSION

As a preliminary matter, Petitioner's claim of ineffective assistance of counsel, filed almost four years after Petitioner's judgment of conviction became final, is untimely, and Petitioner has presented no meritorious argument as to why this claim should be considered timely filed. This claim should be dismissed as time-barred.

Petitioner appears to argue in his response to the Court's order to show cause that his remaining claims should be considered timely under § 2255(f)(3). (CV Doc. 3). Section 2255(f)(3) provides:

Descamps, Donowa, and Alleyne were decided on June 20, 2013, November 7, 2013, and June 17, 2013, respectively. Even if Petitioner were entitled to relief under those decisions pursuant to § 2255(f)(3), his motion, filed on March 15, 2016, remains untimely because it was filed more than a year after any of those decisions were rendered.

Additionally, although Descamps and Alleyne were Supreme Court decisions rendered after Petitioner's judgment, neither Descamps nor Alleyne provides a basis for a timely filing under § 2255(f)(3). Descamps did not involve a newly recognized right. Rather, the Supreme Court merely clarified the law regarding how to determine whether a prior conviction is a violent felony. Descamps, 133 S. Ct. at 2281-82. More important, neither Descamps nor Alleyne have been declared retroactive on collateral review. See Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285-86 (11th Cir. 2014) (holding that "Alleyne does not apply retroactively on collateral review"); Wilson v. Warden FCC Coleman, 581 F. App'x 750, (11th Cir. 2014) (noting that the Supreme Court has not expressly declared Descamps to be retroactive to cases on collateral review, that Descamps was decided in the context of a direct appeal, and that the Supreme Court has not since applied it to a case on collateral review).

Donowa, on the other hand, is a decision by the Eleventh Circuit, which does not have the power to make a new right retroactively applicable to a motion filed pursuant to § 2255. Thus, Donowa would not provide a basis for filing a § 2255 motion under § 2255(f)(3).

Because Descamps, Alleyne, and Donowa do not provide a basis for a timely motion under § 2255(f)(3), Petitioner's motion is untimely and must be dismissed.1

CONCLUSION

Accordingly, it is therefore ORDERED AND ADJUDGED that:

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 make such a showing, Petitioner "`must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,'" Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted). Petitioner has not made the requisite showing in these circumstances.

Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.

DONE AND ORDERED.