REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

LISETTE M. REID, Magistrate Judge.

Movant, Raul Barrios, a federal prisoner confined at Butner Medium II Correctional Institution in Butner, North Carolina, has filed a pro se Motion to Set-Aside Judgment and Vacate Sentence pursuant to 28 U.S.C. § 2255, attacking his sentences entered in Case No. 13-CR-20150-MORENO1. ("Motion") (DE #1).

This case has been referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive motions. See 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b), S. D. Fla. Local Rule 1(f) governing Magistrate Judges, and S.D. Fla. Admin. Order 2019-2.

I. History

The Court has reviewed the Motion, all pertinent portions of the underlying criminal file, Case No. 13-CR-20150-MORENO. The relevant procedural history is not in dispute.

On March 8, 2013, the Movant was indicted in a two-count indictment for a Hobbs Act Robbery. (CR — DE #1 at 5). On May 14, 2013, Movant changed his prior plea of not guilty to guilty. (CR — DE #20). On July 24, 2013, the Court sentenced the Movant to "96 Months (8 Years). Counts 1 and 2 to run Concurrently. SUPERVISED RELEASE: 3 Years to run concurrently. TOTAL ASSESSMENT: $200.00. TOTAL RESTITUTION: $1,800.00." (CR — DE #30). Movant filed a Notice of Appeal (Case No. 13-13557-C, 11th Cir. 2013). On September 5, 2013, the Eleventh Circuit granted his motion for voluntary dismissal with prejudice. (CR — DE #33). Mandate issued the same day. Id. The Movant did not seek certiorari review from the United States Supreme Court. On January 27, 2019, the instant Motion was filed. (DE #1).

I. Discussion

Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move the court which imposed sentence to vacate, set aside or correct the sentence if it was imposed in violation of federal constitutional or statutory law, was imposed without proper jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. A judge may dismiss a § 2255 motion if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." RULE 4(B) OF THE RULES GOVERNING SECTION 2255 CASES IN THE UNITED STATES DISTRICT COURTS2; see also 28 U.S.C. § 2243.3 Upon review of the Motion with supporting memorandum of law, along with pertinent portions of the underlying criminal file, it is apparent that this Court has no jurisdiction over the convictions and sentences under attack in that Movant has filed this motion to vacate beyond the applicable limitations period as set forth in 28 U.S.C. § 2255(f). Courts may sua sponte consider the issue of the timeliness of a motion to vacate. Day v. McDonough, 547 U.S. 198, 199 (2006)(holding that District Courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition, even after the preanswer, initial screening stage of the habeas proceeding). Since it appears that summary dismissal is warranted and Movant is not entitled to postconviction relief, the Respondent has not been required to file a response to the motion to vacate.

II. Analysis

The above-reviewed procedural history of this case reveals that the instant Motion to vacate should be dismissed as untimely filed.4 Generally, § 2255 motions must be filed within one-year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1).

Section 2255(f) sets a one-year limitations period running from the latest of:

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant is prevented from making a motion by such governmental action;

In this case, Movant filed his Motion more than a year after his convictions became final. The Eleventh Circuit Court of Appeals judgment was final on September 5, 2013.5 Therefore, Movant had until December 4, 2013 to seek certiorari review. He failed to do so. The Movant's conviction and sentence became final for statute of limitations purposes on December 4, 2013. The instant Motion did not commence until January 29, 2019, well beyond one year after his conviction and sentence became final. Therefore, the Motion is untimely filed pursuant to § 2255(f)(1).

III. Conclusion

For the foregoing reasons, it is therefore recommended that Movant, Raul Barrios' petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 be dismissed and the case be closed.

Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report. Failure to file timely objections shall bar plaintiffs from a de novo determination by the district judge of an issue covered in this report and shall bar the parties from attacking on appeal factual findings accepted or adopted by the district judge except upon grounds of plain error or manifest injustice. See 28 U.S.C. §636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).