ELIZABETH A. WOLFORD, United States District Judge

Bryan Scott Oathout, Rochester, NY, for Petitioner.

Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for Respondent.

DECISION & ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 6, 2016, pursuant to a plea agreement, Petitioner Joseph Green ("Petitioner") waived indictment and pleaded guilty to a one-count felony information charging a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (felon in possession of firearm). (Dkt. 22; Dkt. 23; Dkt. 24; Dkt. 25). The plea agreement was entered into pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure and called for a prison sentence of 42 months. On March 13, 2017, the Court calculated the Sentencing Guidelines as recommending a prison sentence of 37 to 46 months based on an offense level 17 and a criminal history category IV, and after accepting the parties' Rule 11(c)(1)(C) agreement, the Court sentenced Petitioner to 42 months incarceration and three years supervised released. (Dkt. 32; Dkt. 33; Dkt. 44). Petitioner did not file a notice of appeal from the judgment entered by the Court. (Dkt. 33).

Over two years later, on April 29, 2019, Petitioner, acting pro se , filed a motion seeking relief pursuant to 28 U.S.C. § 2255. (Dkt. 40). Petitioner alleges ineffective assistance of counsel based upon the collateral attack waiver contained in the plea agreement, and an allegedly incorrect calculation of his criminal history points under the Sentencing Guidelines. (Dkt. 40 at 4-5). Because a one-year period of limitations applies to a § 2255 motion, and Petitioner did not file his § 2255 motion until over two years after the final judgment of conviction was entered in this case, this Court issued an Order requesting that Petitioner explain why his motion should not be dismissed as untimely. (Dkt. 43; Dkt. 46).

In response, Petitioner argues that he served a consecutive state sentence before commencing his federal sentence, and because the federal sentence did not begin until the state sentence was finished, his motion is timely. (Dkt. 45 at 1; Dkt. 47 at 1). Further, Petitioner argues that timeliness is an affirmative defense and cannot be raised sua sponte , and that the grounds raised were not his responsibility to discover "when under the advisory of competent counsel." (Dkt. 45 at 3). Petitioner goes on to argue that he only learned of the alleged errors in the calculation of his criminal history points upon discussing the matter with a fellow federal inmate "Page," (Dkt. 47 at 1), and while in state custody, "I did not have the documents necessary to review any potential challenges, even though I did request copies of my sentencing transcripts" (id. at 3).

II. LEGAL STANDARD & ANALYSIS

According to 28 U.S.C. § 2255, a one-year period of limitations applies to a motion attacking a sentence by a person in federal custody, and that time period runs from the latest of the following:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

Here, the judgment of conviction was entered on March 16, 2017 (Dkt. 33), and thus became final, for purposes of 28 U.S.C. § 2255, fourteen (14) days thereafter on March 30, 2017. See Moshier v. United States , 402 F.3d 116, 118 (2d Cir. 2005) ("[F]or purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires."); Fed. R. App. P 4(b)(1)(A)(i) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed...."). The instant motion was not signed until April 23, 2019 (Dkt. 40 at 12), more than two years after the judgment of conviction in this case became final.

Petitioner makes three arguments as to why his § 2255 motion should not be dismissed as time barred: (1) timeliness is an affirmative defense and cannot be raised sua sponte ; (2) his service of a state sentence prior to commencing his federal sentence extended the time to file; and (3) in the exercise of due diligence, he was unable to discover the error in the calculation of his criminal history points until shortly before he filed the § 2255 petition. For the reasons set forth below, none of these purported justifications excuse Petitioner's failure to comply with the one-year statute of limitations. Petitioner's § 2255 motion is untimely and therefore must be dismissed. Sua sponte dismissal is appropriate where the Petitioner is given notice and an opportunity to be heard. See Acosta v. Artuz , 221 F.3d 117, 123 (2d Cir. 2000) ; cf. Spinale v. United States , 277 F. App'x 108, 109 (2d Cir. 2008) (affirming sua sponte dismissal of § 2255 petition without notice because it was unmistakably clear from the facts alleged that the petition was untimely). Indeed, Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts specifically contemplates that a court may dismiss a § 2255 motion before receiving an answer or response from the respondent. Acosta , 221 F.3d at 123. Here, Petitioner was given notice and an opportunity to be heard. (Dkt. 43; Dkt. 46). Thus, contrary to Petitioner's arguments, the Court may raise the issue of the timeliness of the § 2255 motion sua sponte , and dismissal is appropriate if it is untimely.

Petitioner's argument that the one-year time period did not begin to run until he started serving time in federal custody, is similarly without merit. The time period set forth in 28 U.S.C. § 2255(f) runs from the later of four potential dates, none of which reference the beginning of a petitioner's incarceration with the Bureau of Prisons. As referenced above, the judgment of conviction became final on March 30, 2017, and the fact that Petitioner first served time in state custody before commencing his federal sentence does not alter the date that this Court's judgment of conviction became final. "[C]ourts have uniformly held that petitioners still in state custody who have yet to begin serving a consecutive federal sentence may nevertheless challenge that federal sentence and thus are subject to the § 2255 statute of limitations." Perry v. Warden Fort DIX FCI , 609 F. App'x 725, 727 (3d Cir. 2015) ; see Ospina v. United States , 386 F.3d 750, 752 (6th Cir. 2004) ("A prisoner is in custody for the purposes of § 2255 when he is incarcerated in either federal or state prison, provided that a federal court has sentenced him." (citations omitted)).

Finally, Petitioner argues that he could not have discovered the errors alleged through the exercise of due diligence until shortly before he filed his motion, because it was not until he matriculated into federal custody and met fellow inmate "Page" that he learned that the Sentencing Guidelines were calculated in error. (Dkt. 47 at 1). This proffered explanation does not constitute due diligence. The Second Circuit has explained:

The proper task in a case such as this one is to determine when a duly diligent person in petitioner's circumstances would have discovered [the error].... After that date, petitioner was entitled to further delay ... so long as he filed his petition within one year of the date in which the discovery would have been made in the exercise of due diligence.

Wims v. United States , 225 F.3d 186, 190 (2d Cir. 2000).

Here, Petitioner contends that his criminal history points were miscalculated. Specifically, according to Petitioner, "two of Green's convictions are not countable pursuant to U.S.S.G. § 4A1.2(c)(1), as they involve driving violations, and lying to the police." (Dkt. 40 at 5). The errors Petitioner claims to have discovered were discoverable (assuming arguendo that they were errors, which is doubtful) by a duly diligent person at the time of his sentencing. See, e.g., Jean-Philippe v. United States , 83 F. Supp. 2d 338, 340 (N.D.N.Y. 2000) ("the claims raised by Petitioner in the instant motion primarily relate to issues arising out of [Petitioner's] plea and sentencing and, thus, could have reasonably been discovered near or around that time."). Petitioner's service of a state court sentence, and the alleged inability to review his sentencing transcript, did not delay or excuse his failure to raise the issue for more than two years. The criminal history calculation was consistent with Petitioner's plea agreement, which Petitioner stated that he had read "multiple times" at the time of the plea hearing (Dkt. 41 at 6), and the plea agreement's calculations were consistent with the Presentence Investigation Report, which Petitioner stated that he had reviewed at the time of sentencing (Dkt. 44 at 5). Thus, the facts supporting the § 2255 motion were known to Petitioner, at the latest, on the date of sentencing. See Tsastsin v. United States , No. 18 Civ. 5975 (LAK)(GWG), 2019 WL 4266186, at *12-13 (S.D.N.Y. Sept. 10, 2019) (collecting cases). Section 2255(f)(4) therefore did not extend Petitioner's time to file the petition, which must be dismissed as untimely.

III. CONCLUSION

For the foregoing reasons, the § 2255 motion is dismissed as untimely and the Clerk of Court is directed to close the case. Moreover, Petitioner's Motion for an Order to Show Cause (Dkt. 42) is denied as moot.

"[W]hen a district court denies a § 2255 motion on procedural grounds, a certificate of appealability may issue only upon a showing ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ " Moshier , 402 F.3d at 117-18 (quoting Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ). Petitioner has failed to make the required showing and therefore, the Court declines to issue a certificate of appealability.

SO ORDERED.