REPORT AND RECOMMENDATION

G.R. SMITH, Magistrate Judge.

After pleading guilty to bank fraud and, in doing so, waiving most all of his direct and collateral appeal rights,1 Brian Steptoe took no appeal from his 54-month sentence but later moved to compel a Fed. R. Crim. P. 35(b)-based2 sentence reduction in light of his claimed cooperation with the government. CR609-068, docs. 150 at 2; docs. 151, 164, 213. In denying relief, the Court reminded him that it was solely the prosecution's discretion whether to move for it. Doc. 220; see also supra n. 2.

Meanwhile, more than one year has elapsed since his judgment of conviction, and Steptoe again seeks Rule 35 relief, this time through a 28 U.S.C. § 2255 motion (doc. 224) in which he faults his lawyer for, inter alia, failing to advance his claim for Rule 35 relief.3 Doc. 225 at 3. He also complains that the government has "breached" his plea agreement by failing to move under Rule 35(b). Id. at 3-4. And, he moves to amend his § 2255 motion to compel inquiry into "the file" on what became of the government's announced intent to request Rule 35(b) relief for him. Docs. 225 & 226.

Upon 28 U.S.C. § 2255, Rule 4(b) preliminary review, the motions must be denied. First, the Court entered its judgment of conviction and sentence on September 28, 2010. Doc. 150. So even assuming arguendo that § 2255 is an acceptable vehicle to use here,4 the motion is time-barred. Since movant did not appeal his conviction, it became final when the time for filing an appeal expired, Akins v. United States, 204 F.3d 1086, 1089 n. 1 (11th Cir. 2000), which was fourteen days after entry of judgment — October 12, 2010. Fed. R. App. P. 4(b)(1)(A)(i). Under § 2255(f)(1), Steptoe had one year from the date that his conviction became final in which to file his § 2255 motion. His deadline, then, was October 12, 2011. But he did not sign and mail in his § 2255 and related motions until June 7, 2012. Doc. 224 at 13.

Furthermore, filing a Rule 35(b) "compel" motion does not stop that clock. Mendoza v. United States, 2012 WL 28597 at * 2 (W.D. Tex. Jan. 5, 2012) ("Because a collateral challenge is a separate proceeding that does not interfere with the finality of a judgment, a delayed Rule 35 motion has no per se impact on the limitation period."). So even though Steptoe moved to compel Rule 35(b) relief on June 27, 2011 (doc. 213) and it was not denied until October 20, 2011, doc. 220, the one-year clock ticked on, thus time-barring his § 2255 motion.

Even were his § 2255 motion timely, Steptoe cites no valid ground for challenging the government's laxity in seeking Rule 35(b) relief within that rule's one-year period. It made no promise to him that it would, and he waived his right to pursue any collateral relief except on sentence-exceeding grounds (see supra, n. 1) not alleged here.5 And absent such an agreement, his counsel could not be ineffective, even if he had a right to assistance of counsel in pursuing the motion (he did not, see supra n. 2).

Brian Steptoe's § 2255 and related motions, then, must be DENIED. Docs. 224, 225 & 226. Applying the Certificate of Appealability ("COA") standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009) (unpublished), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).

SO REPORTED AND RECOMMENDED.