Covello

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DON C. LIVINGSTON, No. 2:20-cv-0047 KJM AC P Petitioner, v. FINDINGS AND RECOMMENDATIONS PATRICK COVELLO, Warden, Respondent. 16 I. Introduction Petitioner Livingston is a state prisoner incarcerated at Mule Creek State Prison, under the authority of the California Department of Corrections and Rehabilitation (CDCR). Petitioner proceeds pro se and in forma pauperis with this habeas corpus action filed pursuant to 28 U.S.C. § 2254. See ECF No. 1. Petitioner pursues two claims for relief: (1) ineffective assistance of trial counsel for failing to pursue a diminished capacity defense, and (2) lack of substantial evidence to support a special circumstances finding. Id. at 6, 22. Presently pending is respondent’s motion to dismiss this action on the ground it was commenced beyond the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). …