FINAL REPORT AND RECOMMENDATION

Motion to Vacate 28 U.S.C. § 2255.

CATHERINE M. SALINAS, Magistrate Judge.

This matter is before the Court on Anthony Wright's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [11]. Because Mr. Wright is proceeding pro se, the undersigned has liberally construed his filings. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007).

The record of prior proceedings and Mr. Wright's § 2255 motion reveal the following: On March 7, 2013, Mr. Wright and Keanna Armstead were in a car pulled over for a traffic infraction by the Georgia State Patrol. During the stop, Mr. Wright, who has multiple prior felony convictions, was discovered to be in possession of a Sig Sauer handgun. Mr. Wright was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), & 924(e). See United States v. Wright, No. 1:13-CV-419-CAP (N.D. Ga. 2013) ("Wright I").

Motions to suppress the evidence discovered during the traffic stop and Mr. Wright's statements were filed, argued, and briefed. In April 2014, a magistrate judge entered a Final Report and Recommendation recommending that Mr. Wright's motions to suppress be denied, and Wright I was set for trial. And, in June 2014, the district judge presiding over Wright I adopted the Final Report and Recommendation. See id.

As a result of plea negotiations in Wright I, this case (hereinafter "Wright II") was opened in July 2014. In Wright II, Mr. Wright agreed to waive indictment and plead guilty to an information charging him with knowingly possessing a stolen firearm that had been shipped in interstate commerce in violation of 18 U.S.C. §§ 922(j) & 924(a)(2), and the government agreed to dismiss Wright I. See [1], [3], [4] & [4-1]. This is how both Wright I and Wright II were resolved.

In October 2014, judgment was entered in Wright II. See [10]. Mr. Wright did not appeal, and his time to do so expired in November 2014.

In April 2016, well after the one-year limitation period for filing a § 2255 motion expired, see 28 U.S.C. § 2255(f), Mr. Wright prepared and submitted the § 2255 motion now before the Court in Wright II. See [11]. None of Mr. Wright's arguments has any merit.

First, Mr. Wright contends he is entitled under McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), to an equitable exception to the one-year limitation period because he is "actually innocent" of the crime to which he pleaded guilty. See [11]. In support of this claim, Mr. Wright submitted an unsworn and unnotarized affidavit from Ms. Armstead, stating that "she" was the owner of the gun and that "it was not `stolen.'" See [11] at 15. This, of course, contradicts Mr. Wright's sworn admission in his plea agreement in Wright II that he "had reasonable cause to believe that the gun was stolen as he came into possession of the firearm when he took it from Ms. Armstead against her will." See [4-1] at 5. This Court is not required to credit that affidavit. See, e.g., Patel v. United States, 252 F. App'x 970, 975 (11th Cir. 2007) ("There is a strong presumption that the statements made during the plea colloquy are true. Consequently, a defendant bears a heavy burden to show that his statements under oath were false.") (internal citations omitted).

Moreover, Mr. Wright has offered no explanation for his more than one-year delay in obtaining an affidavit from Ms. Armstead. As the Supreme Court observed: not only are "tenable actual-innocence gateway pleas . . . rare," but unjustified delay in bring such a plea "is a factor bearing on the reliability of the evidence purporting to show actual innocence." McQuiggin, 133 S. Ct. at 1928 (internal quotation marks and citation omitted). The Supreme Court instructed district courts that "frivolous petitions should occasion instant dismissal." Id. at 1936.

Second, Mr. Wright argues that his attorney in Wright II provided ineffective assistance of counsel because she did not file any suppression motions in that case. See [11] at 4-5. This argument is frivolous because suppression motions pertaining to the evidence against Mr. Wright were filed and fully litigated in Wright I.

Third, Mr. Wright argues that his conviction and sentence violates Franks v. Delaware, 438 U.S. 154 (1978). See [11] at 9. But that case — which deals with intentionally false statements made in search warrant affidavits — has absolutely no bearing on Mr. Wright's conviction or sentence where the search was conducted without a warrant.

Accordingly, the undersigned RECOMMENDS that Mr. Wright's § 2255 motion be SUMMARILY DISMISSED because it plainly appears that he is not entitled to relief. See 28 U.S.C. § 2255, Rule 4(b).

The undersigned further RECOMMENDS that a Certificate of Appealability be DENIED because Mr. Wright does not meet the requisite standard. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (requiring a two-part showing (1) "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," and (2) "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); see also Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (holding that the Slack v. McDaniel standard will be strictly applied prospectively).

The Clerk is DIRECTED to terminate the referral of this case to the undersigned.

SO RECOMMENDED AND DIRECTED.