REPORT AND RECOMMENDATION

G.R. SMITH, Magistrate Judge.

After pleading guilty to drug charges, CR413-007, doc. 649 (plea agreement); doc. 653 (judgment for 77 months' imprisonment), Joseph Lamar Medlock took no appeal, and now moves under 28 U.S.C. § 2255 to vacate his sentence. Doc. 809. He raises sentencing errors and insists his motion is not untimely because his lawyer disregarded his instruction to take a direct appeal. Id. at 4-5, 9 & 10. Upon preliminary review under §2255 Rule 4, his motion must be denied.

Medlock's sentencing error claims are procedurally defaulted — he cannot use a § 2255 motion "as a `surrogate' for a missed direct appeal." Jones v. United States, 2015 WL 464243 at * 1 (S.D. Ga. Jan. 28, 2015) (citing Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)); see Stone v. Powell, 428 U.S. 465, 478 n. 10 (1976) (28 U.S.C. § 2255 will not be allowed to do service for an appeal). "Under the procedural default rule, a defendant generally must advance an available challenge1 to a criminal conviction or sentence on direct appeal or else [he's] barred from presenting that claim in a § 2255 proceeding." McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (footnote added). Medlock can overcome procedural default by showing "cause excusing his failure to raise the issue previously and prejudice from the alleged error." United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). A meritable ineffective assistance of counsel (IAC) claim "may satisfy the cause exception to the procedural bar." Id. at 1344.

Medlock nominally pleads IAC to overcome his failure to appeal: "Because [my] lawyer failed to [file] my appeal after being directed to do so by me." Doc. 809 at 10. A failure to consult with a defendant regarding an appeal, or otherwise abide his wish to appeal, can constitute IAC. See Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). But Medlock expressly told his lawyer, in writing, not to file an appeal after he was fully informed of his appellate rights. See doc. 651 ("Notice of Post-Conviction Consultation") at 2.2 Medlock ignores this inconvenient fact in declaring, under penalty of perjury, the contrary. Doc. 809 at 12 ("I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. . . .").3 His bare assertion to the contrary now cannot overcome what he swore to be true shortly after sentencing. See, e.g., Eason v. United States, 2014 WL 4384652 at * 3 (S.D. Ga. Sept. 3, 2014). And with nothing to excuse his failure to appeal, Medlock's claims are procedurally defaulted. See Nyhuis, 211 F.3d at 1344.

Movant's § 2255 motion is also untimely. He took no appeal from the September 10, 2014 judgment against him, so his conviction became final on September 24, 2014. Fed. R. App. P. 4(b)(1)(A) (criminal defendants must file a notice of appeal within 14 days of the entry of judgment). That means he had to file his § 2255 motion by no later than one year later, September 24, 2015. 28 U.S.C. § 2255(f). He "signature-filed" his § 2255 motion on September 15, 2016.4 Doc. 809 at 12. Hence, he filed it beyond the one-year limit.

Accordingly, Joseph Lamar Medlock's § 2255 motion should be DENIED. 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), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.") (emphasis added). Any motion for leave to appeal in forma pauperis therefore is moot.

SO REPORTED AND RECOMMENDED.