Huey v. Easterling

Filing 19

ORDER: As provided in the memorandum entered contemporaneously herewith, the court finds that the petition is untimely, and that equitable tolling is not warranted. Therefore, the petitioner's request for equitable tolling 10 is DENIED, and th e respondent's motion to dismiss this action as untimely 17 is GRANTED. The petitioner's petition for federal habeas corpus relief 7 is DENIED, and this action is DISMISSED. As the petitioner has paid the filing fee, his motion to proce ed in forma pauperis 9 is DENIED as moot. The petitioner's request for appointment of counsel, and to be provided with a copy of the record 1 , 11 , also are DENIED as moot. Signed by District Judge Aleta A. Trauger on 11/3/08. (cc: petitioner by reg. & cert. mail) (dt)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION FRANK HUEY, Petitioner, v. WARDEN JOE EASTERLING, Respondent. ) ) ) ) ) ) ) ) ) ORDER The court has before it a pro se petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. (Docket Entry No. 1) Also before the court is the respondent's motion to dismiss this action as untimely. (Docket Entry No. 17) As provided in the memorandum entered contemporaneously herewith, the court finds that the petition is untimely, and that equitable tolling is not warranted. Therefore, the petitioner's request for equitable tolling (Docket Entry No. 10) is DENIED, and the respondent's motion to dismiss this action as untimely (Docket Entry No. 17) is GRANTED. The petitioner's petition for federal habeas corpus relief (Docket Entry No. 7) is DENIED, and this action is DISMISSED. Rule 8(a), Rules ­ Section 2254 Cases. As the petitioner has paid the filing fee, his motion to proceed in forma pauperis (Docket Entry No. 9) is DENIED as moot. The petitioner's request for appointment of counsel, and to be provided with a copy of the record (Docket Entry No. 1, 11), also are DENIED as moot. Should the petitioner file a notice of appeal, such notice shall be docketed as both a notice of appeal and an application for a certificate of appealability, Slack v. McDaniel, 529 U.S. 473, 483 (2000); Rule 22(b), Fed. R. App. P., which will NOT issue, see 28 U.S.C. § 2253(c)(2); Castro v. United States of America, 310 F.3d 900, 901 (6th Cir. 2002); Murphy v. Ohio, 263 F.3d 466, 467 (6th

No. 3:08-0824 Judge Trauger

Cir. 2001); Porterfield v. Bell, 258 F.3d 484, 485-487 (6th Cir. 2001); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997)(overruled in part on other grounds by Lindh v. Murphy, 521 U.S. 320, 326-27 (1997)). Entry of this order shall constitute the judgment in this action. It is so ORDERED. Aleta A. Trauger United States District Judge

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