United States District Court, S.D. Mississippi, Eastern Division
JAMES GANDY, JR. #39446 PETITIONER
J. BANKS RESPONDENT
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE ETC.
STARRETT UNITED STATES DISTRICT JUDGE
CAUSE IS BEFORE THE COURT on Petition of James Gandy Jr. for
Writ of Habeas Corpus  filed pursuant to 28 U.S.C. §
2254 and Respondent's Motion to Dismiss  pursuant to
28 U.S.C. §2244 (d). Having considered the motion, the
record, the applicable law and Report and Recommendation 
of Magistrate Judge Michael T. Parker the undersigned finds
that the Motion to Dismiss  should be Granted and the
Petition for Writ of Habeas Corpus be Dismissed with
prejudice for the reasons hereinafter set forth.
September 16, 1985, Gandy was sentenced as a habitual
offender to serve life in the custody of the Mississippi
Department of Corrections after having been convicted of
kidnaping in the Circuit Court of Jones County, Mississippi.
[1-2]. Thereafter, Gandy filed a notice of appeal. On
September 24, 1985, however, Gandy allegedly escaped from the
Jones County Jail. [1-2]. On October 21, 1985, the State of
Mississippi filed a Motion to Dismiss Appeal supported by an
Affidavit of H.M. Hooks, then Sheriff of Jones County,
Mississippi, which stated that James Gandy, Jr. had escaped
the jail and remained at large as of October 10, 1985. [1-2].
On October 21, 1985, the Circuit Court of Jones County
entered an Order to Dismiss Appeal. [1-3] and [1-4].
2013, Gandy filed a Motion for Post-Conviction Relief in the
circuit court. See Gandy v. State, 197 So.3d 427
(Miss. Ct. App. 2015) reh'g denied, May 3, 2016;
cert. denied, Aug. 11, 2016. The circuit court held
that Gandy's PCR motion was time-barred, as it was filed
beyond the three-year statute of limitations. Id.
Gandy appealed and argued that the statute of limitations
should not apply because his sentence as a habitual offender
was illegal and deprived him of due process. Id. On
December 8, 2015, the Mississippi Court of Appeals affirmed
the circuit court's decision that Gandy's PCR motion
was time-barred under Miss. Code Ann. § 99-39-5, and
held that Gandy's sentence was not illegal. Id.
The Mississippi Supreme Court entered an Order denying
certiorari review of Gandy's PCR motion on
August 11, 2016. [1-4].
September 28, 2016, Gandy filed the instant Petition for Writ
of Habeas Corpus. . Thereafter, Respondent filed his
Motion to Dismiss , asserting that the Petition was not
timely filed and should be dismissed. Gandy filed a Response
, asserting that direct review was not final until August
11, 2016, the date the Mississippi Supreme Court denied
certiorari review of the circuit court's denial
of his Motion for Post-Conviction Relief. Gandy further
asserts that he diligently pursued collateral challenges to
STANDARD OF REVIEW
party objects to a Report and Recommendation this Court is
required to “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). See also Longmire v. Gust,
921 F.2d 620, 623 (5th Cir. 1991) (Party is
“entitled to a de novo review by an Article
III Judge as to those issues to which an objection is
made.”) Such review means that this Court will examine
the entire record and will make an independent assessment of
the law. The Court is not required, however, to reiterate the
findings and conclusions of the Magistrate Judge.
Koetting v. Thompson, 995 F.2d 37, 40
(5th Cir. 1993) nor need it consider objections
that are frivolous, conclusive or general in nature.
Battle v. United States Parole Commission, 834 F.2d
419, 421 (5th Cir. 1997). No factual objection is
raised when a petitioner merely re-urges arguments contained
in the original petition. Edmond v. Collins, 8 F.3d
290, 293 (5th Cir. 1993).
PETITIONER'S OBJECTIONS AND ANALYSIS
objections to the Magistrate Judge's report states that
he “objects to the entire Report and Recommendation and
requests the Court will require further evidence or recommit
the matter to the Court with instructions” [13-1].
Following his general objection, he objects to the Court
relying on the Affidavit from the Sheriff of Jones County
regarding the fact that he escaped and waived his right to
appeal in 1985. As to this issue he claims that the Court
should have ordered a hearing and further claims that he did
not escape and that his appeal was illegally dismissed in
1985, He further contends that he was denied due process
because there was no transcript and record of his proceeding
and was prevented from asserting his rights and that this
fact justifies exceptional circumstances and equitable
tolling should apply. He further states that he attempted to
reinstate his appeal in 1985 and that his habitual offender
sentence was illegal.
interesting issue alleged by Petitioner is that the
Antiterrorism and Effective Death Penalty Act did not become
effective until April 24, 1996 and that he was not informed
of the ramifications of the statute of limitations therein as
set forth in §2244 (d)(1)(A).
Report and Recommendation Judge Parker gave Gandy the benefit
of the doubt. One year from the effective date of the AEDPA
was April 24, 1997, which was the date used by Judge Parker
to establish the running of the statute of limitations and
the date by which Gandy would have been required to file his
federal habeas petition. Judge Parker further reasoned that
unless he was entitled to statutory and/or equitable tolling
that the April 24, 1997 date ended his opportunity to file a
federal habeas petition. The original petition by Gandy was
filed on September 28, 2016, thirty years after his Judgment
became final, and more that nineteen years after the April
24, 1997 deadline. His allegation that he was entitled to
statutory tolling because his state post-conviction petition
remained pending is not well taken. The state post-conviction
collateral relief petition was not filed until many years
after the deadline for his federal habeas had expired,
therefore he is not entitled to statutory tolling.
further alleges that he is entitled to equitable tolling
which is only appropriate in rare and exceptional
circumstances. Judge Parker gives his reasons why Petitioner
is not entitled to equitable tolling, and the Court adopts
his reasoning and finds that it is correct.
the statute of limitations long since passed and Petitioner
not being entitled to statutory equitable tolling he is
without an avenue to obtain relief in this Court. The Court