REPORT AND RECOMMENDATION

GARY R. JONES, Magistrate Judge.

This matter is before the court upon Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 209. Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in part that "[i]f it plainly appears from the face of the motion and any attached exhibits and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." After a review of the record, the Court concludes that the motion is untimely and that it should be summarily dismissed.

BACKGROUND and ANALYSIS

On April 9, 2014 Defendant was convicted after a jury trial of one count of Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) and (d), one count of use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 924(g)(1). ECF No. 146. Defendant was sentenced to a term of 262 months imprisonment as to count 1, 84 months imprisonment as to count 2, and 120 months imprisonment as to count 3. ECF No. 173. The sentences imposed in counts 1 and 2 were consecutive to one another and the sentence imposed in count 3 was concurrent with the sentences in counts 1 and 2. Defendant appealed on August 20, 2014. ECF No. 175. The Eleventh Circuit affirmed on June 17, 2015. ECF No. 192 and the mandate issued on July 16, 2015. ECF No. 193.

On March 23, 2016, Defendant filed a motion entitled Motion for Newly Discovered Evidence. ECF No. 201. On March 25, 2016, the Court entered an order denying the motion. ECF No. 203. In the order denying Defendant's motion the Court expressly advised Petitioner that he was required to file a §2255 motion because he was collaterally attacking his conviction. The Court specifically advised Petitioner in the Order "Mr. Christian is warned that § 2255 contains a one-year time limit for filing motions under that section." Id., p. 2. Defendant did not file his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody until April 24, 2017.1

Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of motions under this section. The one-year period of time runs from the latest of:

28 U.S.C. § 2255. Defendant's sentence was affirmed on appeal on June 17, 2015. Defendant did not file a petition for certiorari with the United States Supreme Court, and as such his judgment of conviction became final on the date on which his time for filing such a petition expired (i.e., ninety days after the entry of the court of appeals' judgment.)2 Clay v. United States, 537 U.S. 522, 525 (2003); Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002); Hill v. United States, 444 F. App'x 419 (11th Cir. 2011). Because Defendant's judgment of conviction became final on September 15, 2015, to have been timely filed, his § 2255 motion had to be filed no later than September 15, 2016. His motion, dated April 24, 2017, is thus facially untimely.

Unless Defendant establishes his entitlement to equitable tolling, his motion is time barred. Jones v. United States, 304 F.3d 1035, 1038 (11th Cir. 2002) (citing Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000)). Equitable tolling is appropriate when a § 2255 motion is untimely because of "extraordinary circumstances that are both beyond [the defendant's] control and unavoidable even with diligence." Johnson v. United States, 340 F.3d 1219, 1226 (11th Cir. 2003) (citing Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)). Otherwise stated, "a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted); Hutchinson v. Florida, 677 F.3d 1097, 1100 (11th Cir. 2012). It only applies in "truly extraordinary circumstances." Johnson, 340 F.3d at 1226 (citing Jones, 304 F.3d at 1039-40; Drew, 297 F.3d at 1286). The onus is on the moving defendant to show that he is entitled to this extraordinary relief. Johnson, 340 F.3d at 1226, Jones, 304 F.3d at 1040. The court will not relieve a petitioner who has sat upon his rights. United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000) (citing Coleman v. Johnson, 184 F.3d 398, 402-03 (5th Cir. 1999)).

In this case Defendant cannot make a plausible argument that he is entitled to equitable tolling. Even assuming there were events that transpired that could support an equitable tolling argument, the Defendant was expressly advised by the Court on March 25, 2016, that a one-year statute of limitations applies to petitions under § 2255. And in that order the Court directed the clerk to send Defendant the form for filing his § 2255 petition. Defendant waited more than one year from then to file his petition and thus there is no credible argument that Defendant should be entitled to equitable tolling. Simply put, there is nothing in the instant motion to suggest that Defendant intended to, or is entitled to, invoke the doctrine of equitable tolling. Thus, his motion should be denied as untimely.

CERTIFICATE OF APPEALABILITY

Section 2255 Rule 11(a) provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. § 2255 11(b).

After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED:

1. Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 209, should be summarily DENIED and DISMISSED as untimely.

2. A certificate of appealability should be DENIED.