REPORT AND RECOMMENDATION

ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.

Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. This matter is before the Court on the motion to vacate, Respondent's Response in Opposition, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge's RECOMMENDS that the Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 115) be DENIED and that this action be DISMISSED.

Petitioner's request for an evidentiary hearing is DENIED.

Facts and Procedural History

On April 7, 2015, Petitioner pleaded guilty pursuant to the terms of his negotiated Plea Agreement to Counts Five and Eight of the Indictment, which charged him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), § 924(a), and § 924(e), and transportation in interstate commerce for purposes of prostitution, in violation of 18 U.S.C. § 2421. (ECF No. 96.) Under the provision of § 924(e), the Armed Career Criminal Act ("ACCA"), Petitioner acknowledged that he understood that he faced a mandatory minimum term of 15 years. Plea Agreement (ECF No. 63, PAGEID # 137.) On June 15, 2015, the Court granted defense counsel's motion to delay sentencing pending a decision from the United States Supreme Court in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2251 (2015) (declaring the "residual clause" of the ACCA to be constitutionally invalid). Order (ECF No. 92, PAGEID # 213.) On August 27, 2015, the parties agreed to amend the terms of Petitioner's Plea Agreement in view of the Johnson decision to delete Petitioner's conviction under the § 924(e) of the ACCA, reducing the penalty he faced from a mandatory minimum fifteen year term to a maximum term of ten years, and to remove the corresponding enhancement of his recommended sentence under U.S.S.G. § 4B1.41 as it applied to his conviction under the ACCA in Count 5. See Transcript (ECF No. 118, PAGEID # 364-65.) Petitioner was present at that time, and indicated that he agreed with the proposed changes to his Plea Agreement, that he had discussed the amendments with his attorney, and that she had answered all of his questions to his satisfaction. (PAGEID # 367.) On August 27, 2015, Petitioner signed the Amended Plea Agreement. (ECF No. 96, PAGEID # 231.) On December 15, 2015, the Court entered Judgment and imposed an aggregate term of 200 months imprisonment. (ECF No. 101.) Petitioner did not file an appeal.

On February 9, 2017, Petitioner filed a Motion for Extension of Time to File § 2255 Motion, indicating that he had been housed in the "hole or `special housing unit' S.H.U." since November 15, 2016. (ECF No. 108.) The Court granted Petitioner's request. Order (ECF No. 109.) On February 21, 2017, Petitioner filed a second Motion for Extension of Time to File, indicating that he had been removed from the S.H.U. on February 8, 2017, but that he was "in transit," awaiting his transfer to U.S.P. Lee in Virginia, and that he had no access to the prison's law library. (ECF No. 110.) The Court granted Petitioner's request. Order (ECF No. 111.) On March 13, 2017, Petitioner filed a third Motion for Extension of Time to File a § 2255 Motion, indicating that he did not obtain his legal documents until March 3, 2017, and that he was in transit from February 8, 2017, until February 28, 2017. (ECF No. 112.) The Court again granted Petitioner's request. Order (ECF No. 113.)

On April 10, 2017, Petitioner filed the Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 115.) Petitioner asserts that he was denied the effective assistance of counsel, because his attorney failed to file an appeal after being requested to do so (claim one); and that his attorney deceived him into signing the Amended Plea Agreement which prevented him from obtaining a reduced sentence under the Supreme Court's Johnson decision, and resulted in the imposition of consecutive, as opposed to concurrent, terms of incarceration without conducting a plea hearing on the Amended Plea Agreement (claim two). It is the position of the Respondent that this action should be dismissed as barred by the one-year statute of limitations provided for under 28 U.S.C. § 2255(f), and that Petitioner's claims lack merit.

Statute of Limitations

28 U.S.C. § 2255(f) provides for a one-year statute of limitations in connection with the filing of federal habeas corpus petitions, as follows:

Petitioner did not file an appeal. Therefore, his conviction became final under the provision of § 2255(f)(1), on December 29, 2015, that is fourteen ten days after the December 15, 2015, Judgment of sentence, when the time period expired to file an appeal. See Fed. App. R. 4(b)(1)(A); Harris v. United States, 686 F. App'x 345, 347 (6th Cir. 2017) (citing Sanchez-Castellano v. United States, 358 F.3d 424, 425 (6th Cir. 2004) ("When a federal criminal defendant does not appeal to the court of appeals, the judgment become final upon the expiration of the period in which the defendant could have appealed to the court of appeals, even when no notice of appeal was filed")). The statute of limitations began to run the next day, and it expired on December 30, 2016.

Nonetheless, Petitioner waited until February 9, 2017, to file his first Motion for Extension of Time to File § 2255, and after the statute of limitations had already expired. Although it is not entirely clear, the motion appears to be dated February 6, 2017, also after the statute of limitations had expired. Further, Petitioner thereafter requested three continuances of time for the filing of this action, and waited until March 28, 2017, to execute the Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 115, PAGEID # 318.) Plainly, therefore, this action is untimely. Although Petitioner indicated in his first motion for an extension of time that he had been housed in the special housing unit from November 15, 2016, until December 7, 2016, the record does not indicate that anything prevented his timely filing. The record likewise fails to reflect a basis for equitable tolling of the statute of limitations.

A petitioner is entitled to equitable tolling only if he shows "1) that he has been pursuing his rights diligently, and 2) that some extraordinary circumstances stood in his way" and prevented his timely filing. Holland v. Florida, 560 U.S. 631, 650 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Petitioner bears the burden of demonstrating that he is entitled to equitable tolling. Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011). Additionally, equitable tolling is granted sparingly in habeas cases. See Hall v. Warden, Lebannon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011). A prisoner's pro se incarcerated status, lack of knowledge regarding the law, and limited access to the prison's law library or to legal materials do not provide a sufficient justification to apply equitable tolling of the statute of limitations. Lacking v. Jenkins, No. 2:15-cv-3069, 2016 WL 4505765, at *4 (S.D. Ohio Aug. 29, 2016) (citing Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 751 (6th Cir. 2011)). These are conditions typical for many prisoners and do not rise to the level of exceptional circumstances. Id. (citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004). As discussed, the record does not reflect that any extraordinary circumstances prevented Petitioner from timely filing this § 2255 petition.

Recommended Disposition

Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Petitioner's request for an evidentiary hearing is DENIED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.