(HC) Livingston v. Covello

Filing 33

ORDER signed by Chief District Judge Kimberly J. Mueller on 3/31/2021 ADOPTING 25 Findings and Recommendations in full; GRANTING 12 Motion to Dismiss; DISMISSING this action with prejudice as untimely filed; DECLINING to issue certificate of appealability. CASE CLOSED. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DON C. LIVINGSTON, 12 13 14 15 No. 2:20-cv-0047 KJM AC P Petitioner, v. ORDER PATRICK COVELLO, Warden, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 2, 2020, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within thirty days. ECF No. 25. Petitioner has 23 filed objections to the findings and recommendations. ECF No. 30; see also ECF No. 32 24 (clarifying that document styled a “Reply and Exhibits” is properly construed as objections). 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 27 findings and recommendations to be supported by the record and by the proper analysis. In 28 particular, the court notes the magistrate judge’s careful evaluation of the record with respect to 1 1 petitioner’s mental health and whether it impeded his ability to present timely legal filings as 2 relevant to his case; the court also notes the magistrate judge’s faithful identification of the law 3 and analysis with respect to the facts of petitioner’s case. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The findings and recommendations filed December 2, 2020, ECF No. 25, are adopted 6 in full; 7 2. Respondent’s motion to dismiss, ECF No. 12, is granted; 8 3. This action is dismissed with prejudice because untimely filed; and 9 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 10 § 2253. 11 DATED: March 31, 2021. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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