United States District Court, C.D. California
Matthew Moscoe, Petitioner, Pro se, Tehachapi, CA.
For M. Holland, Respondent: Allison Hewon Chung, CAAG - Office of Attorney General, Califorina Depatment of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
FREDERICK F. MUMM, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the petition be denied and the action be dismissed with prejudice.
Petitioner Matthew Moscoe (" Petitioner"), a state prisoner in the custody of the California Department of Corrections, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (" Petition") on June 22, 2014. Thereafter, respondent filed a motion to dismiss the Petition as untimely. On August 25, 2014, Petitioner filed an opposition to respondent's motion. Respondent then filed a reply. The matter, thus, stands submitted and ready for decision.
II. PROCEDURAL HISTORY
In 2008, a Los Angeles County jury convicted Petitioner of attempted murder, robbery, and carrying a loaded firearm after suffering a conviction. After several other allegations were found true, Petitioner was sentenced to life, plus twenty-nine years and eight months in state prison.
Petitioner then appealed his conviction. On January 26, 2011, the California Court of Appeal filed an unpublished opinion affirming his conviction. Thereafter, he filed a petition for review in the California Supreme Court, which denied review on March 11, 2011. He then filed a petition for writ of certiorari in the United States Supreme Court, which denied the petition on June 29, 2012.
Eleven months later, on May 29, 2013, Petitioner initiated a series of collateral attacks to his conviction, the first of which he filed in the California Court of Appeal. That petition was denied on October 25, 2013. Next, on November 7, 2013, he attempted to constructively file in the California Supreme Court a petition for review of the court of the appeal's order denying his habeas petition. Petitioner, however, sent the petition to review to the wrong address. Consequently, on November 18, 2013, the petition for review was returned to him. That same day, according to Petitioner, he constructively filed a second petition for review in the California Supreme Court, this time mailing it to the correct address. On December 9, 2013, however, the California Supreme Court ruled that the petition had not been properly filed because, pursuant to California statutory law, the California Supreme Court had lost jurisdiction over any petition for review of the court of appeal's decision on November 25, 2013. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on January 3, 2014. On March 26, 2014, the California Supreme Court denied Petitioner's second state habeas petition.
Two months later, on May 26, 2014, Petitioner constructively filed a motion for extension of time in this Court. Therein, he asked to the Court to decide prospectively whether a habeas petition that he was contemplating filing at some unspecified future date in federal court would be time-barred. On July 1, 2014, the Court entered judgment dismissing the action for lack of jurisdiction.
Prior to the dismissal of that action, Petitioner initiated this ...