RECOMMENDED DISPOSITION

ROBERT E. WIER, Magistrate Judge.

On May 11, 2015,1 Defendant/Movant Horacio Estrada-Elias filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. See DE #166 (Motion). The Court conducted an initial review of the motion and perceived it to be untimely. However, in order to give Estrada-Elias a fair opportunity to respond, the Court ordered briefing on the issue of timeliness/equitable tolling. DE #167 (Order). Estrada-Elias sought and received an extension of time to respond. DE ##168 (Motion), 169 (Order). He then requested a second extension, DE #170 (Motion), and the Court denied the motion. DE #171 (Order). The United States responded and sought dismissal, alleging that the motion is untimely and that equitable tolling does not apply on this record. DE #172 (Response). Movant then filed2 a response, attaching two transcripts, an affidavit, a declaration, a letter and jurat from Elizabeth Estrada-Abuzaid, and a letter from Attorney Walter Nash. DE #173 (Response). Having reviewed the filings under the applicable standards, the Court RECOMMENDS that the District Court DISMISS the time-barred petition WITH PREJUDICE and DENY a Certificate of Appealability.

I. STATUTE OF LIMITATIONS

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective. Section 2255 provides in relevant part:

28 U.S.C. § 2255(f).

Judge Reeves entered judgment3 on April 24, 2008. DE #151 (Judgment). Estrada-Elias did not appeal. In 2008, an unappealed judgment became final 10 days after entry. Fed. R. App. P. 4(b)(1)(A) (2008 ed.); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (stating 10 days under the pre-2009 amended Rule).4 Accordingly, Estrada-Elias had ten days from April 24, 2008, or until May 5, 2008, to appeal. He then, per the AEDPA, had one year from May 5, 2008, to file a § 2255 motion. Estrada-Elias did not file his motion until May 11, 2015, thereby missing the filing deadline by over 6 years.

Estrada-Elias makes no credible attempt to avoid § 2255(f). His motion's short and conclusory timeliness argument—that Movant "diligently pursued his attorney to have an appeal filed, and[] only now is convinced that Attorney Walter Nash's efforts are a fraud"—is unavailing. See DE #166, at 12; see also DE #173, at 5 (same language). Even after passage of the appeal window, Movant did not promptly act to protect his rights, instead waiting over 7 years to file. This lengthy period of inaction belies Movant's contention that he "only now is convinced" that Attorney Nash did not file an appeal. Further, the case docket reflects no activity between June 2008 and February 2013, when Movant requested a copy of the docket sheet and a § 2255 application. See DE #157 (Letter). The Clerk promptly mailed each, but Estrada-Elias still waited over two years to submit a § 2255 motion. Simply put, Estrada-Elias filed more than one year after the judgment became final. The motion is conclusively time-barred under § 2255(f).

II. EQUITABLE TOLLING

Further, equitable tolling does not spare Estrada-Elias's petition.5 The AEDPA statute of limitations is not jurisdictional; therefore, equitable tolling may apply in some circumstances. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010) (citing Day v. McDonough, 126 S.Ct. 1675, 1681 (2006)); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). However, the doctrine applies "sparingly," and the burden is on the defendant to prove its applicability. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). When requesting equitable tolling of the AEDPA limitation period, a petitioner 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, 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 125 S.Ct. 1807, 1814 (2005)). The Sixth Circuit accordingly evaluates requests for equitable tolling under this two-part test. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir. 2011) (no longer following the five-factor test). The proper inquiry is case-by-case and fact-based. See Holland, 130 S. Ct. at 2562-63. The doctrine "allows courts to toll a statute of limitations when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Plummer v. Warren, 463 F. App'x 501, 504 (6th Cir. 2012) (citation and internal quotation marks omitted).

There is utterly no basis here for the doctrine of equitable tolling. Again, needless to say, the delay of over 7 years between conviction finality and Movant's § 2255 filing clearly undercuts the diligence of his rights pursuit. Estrada-Elias would have known in May 2008 that his attorney did not file a notice of appeal, but he took no steps for over 7 years to raise and assert his rights. Nothing in the record suggests Estrada-Elias lacked actual or constructive notice of the filing requirements of § 2255, and the Court finds no evidence of reasonable ignorance of the legal requirement to file the claim.6

Further, the record reflects no extraordinary circumstance sufficient to warrant equitable tolling. Estrada-Elias attempts to identify "several [two] extraordinary circumstances[,]" DE #173, at 3, but neither suffices to justify tolling here. First, Movant states that he "was led to believe by the Court that he would be coming back for further sentencing considerations pursuant to Rule 35." Id. Second, Estrada-Elias states that Attorney Nash also informed him that he "would go back to receive a Rule 35 sentencing reduction" after certain satisfaction of certain conditions. Id. The statement he attributes to the Court, see DE ##173, at 3; 173-2, at 28, was merely in the context of defense counsel requesting sentencing approximately 180 days from rearraignment. The timing of sentencing is irrelevant to any possible Rule 35(b) activity; that rule applies post-judgment. Other counsel statements merely contemplate the possibility of future Rule 35 proceedings. E.g., DE #173-2, at 36-38 (E.g., "If we are back here under a Rule 35 posture"; "if there is a Rule 35 motion at some point in the case").

Under the prevailing standards, the doctrine of equitable tolling does not apply to save the untimely motion.7 Estrada-Elias did not file a timely § 2255 motion, and nothing but his own chosen course of conduct caused that result.8 He does not establish any extraordinary obstacle to timely filing. Any statements regarding future, speculative Rule 35 sentencing proceedings are wholly tangential to the lynchpin issue here: demonstration of circumstances beyond Movant's control that prevented timely § 2255 filing. Statements concerning possible future case proceedings simply do not touch on either the diligence of Estrada-Elias's rights pursuit or any extraordinary obstacles to meeting the § 2255 filing deadline. That is, any Movant belief that he should have returned to Court for further sentencing proceedings does not address either the 7year period of inaction between conviction finality and § 2255 motion filing (during which Estrada-Elias would have been aware that Nash did not file a notice of appeal) or any extraordinary obstacle to timely filing a § 2255 motion. An expectation of future court proceedings does not prevent and is no obstacle (much less an extraordinary one) to timely filing a habeas motion. Estrada-Elias may be disappointed that he did not receive Rule 35(b) consideration. That in no way impacts the obvious lapse of any appeal deadline, the obvious lapse of § 2255(f), and the lengthy period in which Movant chose to bide time and remain inactive. The tolling burden is Movant's, and he wholly fails to carry it.

III. CONCLUSION

Because Estrada-Elias's petition is time-barred, the Court RECOMMENDS that the District Court DISMISS the motion (DE #166) WITH PREJUDICE and DENY a Certificate of Appealability.9

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The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Recommended Disposition, issued under subsection (B) of the statute. See also Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 8(b). Within fourteen days after being served with a copy of this decision, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Court. Failure to make a timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or review by the District Court and Court of Appeals. See Thomas v. Arn, 106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).