United States District Court, S.D. Mississippi, Northern Division
BOBBY C. SANDERS PETITIONER
RONALD WAYNE KING RESPONDENT
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION  AND DISMISSING PETITION  WITH
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge Linda R.
Anderson, entered on May 7, 2018. Petitioner Bobby C. Sanders
filed a Petition  under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody, seeking to vacate
his state conviction for armed robbery. The Magistrate Judge
recommended that this habeas petition be dismissed as
time-barred. After due consideration of the Report and
Recommendation , the record, and relevant legal authority,
the Court finds that the Report and Recommendation should be
adopted as the finding of this Court, and that Sanders'
Petition  should be dismissed with prejudice.
February 27, 2002, Sanders pleaded guilty to one count of
armed robbery in the Circuit Court of Madison County,
Mississippi. Order of Sentence [6-1] at 1. Sanders'
conviction stems from an armed robbery committed by three men
- Sanders, Elias Gunn, and Gerome Moore. See Moore v.
State, 858 So.2d 190, 192 (Miss. Ct. App. 2003). Sanders
and Gunn pleaded guilty to armed robbery, but the charges
against Moore proceeded to trial. Id. Gunn gave a
pretrial statement and testified at Moore's trial that
Sanders shot the victim during the robbery. Id.
Moore also gave two pretrial statements and wrote a letter to
the district attorney admitting his and Sanders'
participation in the armed robbery. Id. at 192-93.
Moore testified at trial that Sanders shot the victim.
Id. at 193. Moore was convicted of armed robbery,
id. at 192, and the Court of Appeals of Mississippi
affirmed the conviction, id. at 196.
March 13, 2002, the Madison County Circuit Court sentenced
Sanders to be imprisoned for a term of forty years, with five
years suspended, for a total sentence of thirty-five years in
the custody of the Mississippi Department of Corrections,
followed by five years of post-release supervision.
Id. at 2. Over twelve years later, on July 30, 2014,
Sanders filed a Petition for Writ of Habeas Corpus/Motion to
Vacate Conviction in the Madison County Circuit Court, State
Ct. Pet. [6-2], claiming that he is actually innocent of the
armed robbery charge, id. at 2. In support of this
claim, Sanders submitted an affidavit from Moore, signed on
February 25, 2010, in which Moore stated that Sanders was not
present during the armed robbery. Id. at 7-10.
Sanders also asserted that he was forced and coerced into
pleading guilty. Id. at 2.
August 11, 2014, the circuit court dismissed Sanders'
state court petition as untimely. Judgment of Dismissal
[6-3]. Sanders appealed to the Court of Appeals of
Mississippi, contending that his post-conviction relief
petition was not time-barred because of newly discovered
evidence, namely, Moore's affidavit. Sanders v.
State, 179 So.3d 1207, 1209 (Miss. Ct. App. 2015). The
court of appeals noted that Moore, prior to his trial, gave
two statements and wrote a letter to the district attorney in
which he admitted his and Sanders' participation in the
armed robbery, id. (citing Moore, 858 So.2d
at 196), and during Moore's trial, Moore and Gunn both
testified that Sanders shot the victim during the armed
robbery, id. (citing Moore, 858 So.2d at
196). The Court of Appeals of Mississippi thus found that
Sanders had failed to show that Moore's affidavit would
change the outcome of a new trial because “[a]ny
testimony from Moore would be impeached by his own sworn
testimony at his own trial as well as his three pretrial
statements.” Id. The court affirmed the
judgment dismissing the petition as untimely. Id.
December 4, 2017, Sanders forwarded to this Court a Petition
 under 28 U.S.C. § 2254 for Writ of Habeas Corpus by
a Person in State Custody, challenging his armed robbery
conviction. Sanders contends that his guilty plea was
involuntary and unknowingly made, that his counsel was
ineffective, that he is actually innocent, and that his race
was a motivating factor in his prosecution. Pet.  at 5,
January 3, 2018, Respondent filed a Motion  to Dismiss,
asserting that Sanders' Petition is untimely under the
one-year statute of limitations provision of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C § 2241(d). Respondent
posits that because Mississippi does not provide for a direct
appeal of a guilty plea, Sanders' conviction became final
the date he was sentenced, March 13, 2002. Mot.  at 3.
Respondent further contends that because Sanders did not
properly file a post-conviction relief motion on or before
March 13, 2003, to toll the limitations period, his Petition
is time-barred. Id. at 4. With respect to
Sanders' claim of actual innocence, Respondent argues
that Sanders has failed to produce any evidence that was
unavailable at the time of Sanders' guilty plea to
support a claim of innocence. Id. at 6.
7, 2018, the Magistrate Judge issued a Report and
Recommendation, recommending the dismissal of Sanders'
Petition as time-barred. The Magistrate Judge found that
Sanders had thirty days following his guilty plea, until
April 12, 2002, to directly appeal his sentence. R. & R.
 at 4. The Magistrate Judge noted that Sanders was
required to file a motion for collateral relief in state
court by April 14, 2003, in order to toll the statute of
limitations, but failed to do so, such that the AEDPA's
one-year statute of limitations ran uninterrupted.
Id. The Magistrate Judge found no statutory or
equitable basis for tolling the limitations period,
id., and addressed Sanders' claim of actual
innocence and found that Sanders had not identified any newly
discovered evidence, and that Sanders' evidence and
innocence claim were rejected by the Court of Appeals of
Mississippi, id. at 4-5. The Magistrate Judge
recommended that Sanders' Petition be dismissed with
prejudice. Id. at 7.
of the Report and Recommendation was mailed to Sanders at the
address most recently provided. To date, Sanders has not
objected to the Report and Recommendation, and the time for
doing so has passed.
no party has objected to a magistrate judge's proposed
findings of fact and recommendation, the Court need not
conduct a de novo review of it. 28 U.S.C. § 636(b)(1)
(“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). In such cases, the Court applies the
“clearly erroneous, abuse of ...