The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On February 19, 2012, respondent moved to dismiss movant's request on the grounds that movant had previously waived his right to file a collateral attack on the criminal judgment in his plea agreement, and that the motion to vacate was untimely.*fn1
On August 7, 2008, pursuant to a plea agreement, movant pled guilty to seven felony counts of dealing firearms without a license, interstate travel to acquire firearms without a license, transporting firearms interstate in furtherance of unlicensed firearm dealing, and possession of an unregistered machine gun. See Docket No. 51. Movant was subsequently sentenced to terms of 57 months on each count, to be served concurrently, for a total term of 57 months. See Doc. No. 61. Judgment was entered against the movant on February 20, 2009. See Doc. No. 63.
Movant's plea agreement reads, in part:
Waiver of Appeal and Collateral Attack: The defendant understands that the law gives him a right to appeal his conviction and sentence. He agrees as part of his plea, however, to give up the right to appeal the conviction and the right to appeal any aspect of the sentence imposed in this case so long as his sentence is no longer than 60 months in prison. Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a post-appeal attack on his conviction or sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.
Movant's plea agreement was signed by both movant and his counsel. See Doc. No. 53 at 8-9. Specifically, the "Approvals and Signatures" section reads:
A. Defense Counsel: I have read this Plea Agreement and have discussed it fully with my client. The Plea Agreement accurately and completely sets forth the entirety of the agreement. I concur in my client's decision to plead guilty as set forth in this plea agreement.
Dated: 8/7/8 /s/ Linda C. Harter
B. Defendant: I have read this Plea Agreement and carefully reviewed every part of it with my attorney. I understand it, and I voluntarily agree to it. Further I have consulted with my attorney and fully understand my rights with respect to the provisions of the Sentencing Guidelines that may apply to my case. No other promises or inducements have been made to me, other than those contained in this Plea Agreement. In addition, no one has threatened or forced me in any way to enter into this Plea Agreement. Finally, I am satisfied with the representation of my attorney in this case. Dated: 8-7-08 /s/ Ricardo Madrigal Id. at 8-9.
Movant did not file an appeal of his judgment and sentence. Under the rules in effect at the time movant was sentenced, his time to do so expired on March 3, 2009. See Fed. R. App. P. 4(b)(1)(A), (b)(6) (under rule in effect at time of movant's conviction, appeal was to be filed within 10 days of entry of judgment).*fn2 Accordingly, his conviction became final on March 3, 2009, when his time to file an appeal expired. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S.Ct. 708, 712 (1987) ("By final, we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.").
Movant filed the current motion to vacate on September 5, 2011, or more than two years and six months after his conviction became final.*fn3 See Doc. No. 71. In his motion, movant argues that: (1) his sentence was improperly enhanced, in violation of Blakely and Apprendi, and his sentence is therefore unreasonable; and (2) movant's counsel was ineffective. See Doc. No. 71 at 9-18. Movant also argues that his motion is not barred by his plea agreement, because the court lacked jurisdiction to enter his sentence. Id. at 5-6. Movant finally argues that he is entitled to equitable tolling because of his "appellate" counsel's failure to advise him that he could file a section 2255 motion. Id. at 7-8.
Respondent moves to dismiss the motion to vacate, arguing that it is barred by movant's plea waiver and by the statute of limitations. See Doc. No. 78 at 1-2. In opposition, movant argues that his plea was not voluntary, and that his counsel and the trial court failed to ...