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