IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50530 Conference Calendar

THOMAS D. TINER,

Petitioner-Appellant,

versus

FNU TREON, Warden, Terrell Unit, Texas Department of Corrections; ET AL,

Respondents,

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. MO-98-CV-149 -------------------- August 23, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.

PER CURIAM:*

Thomas D. Tiner, Texas inmate #706290, appeals the district

court’s dismissal of his

petition as time-

barred. Tiner’s motion for appointment of counsel is DENIED.

Tiner admits that his § 2254 petition was not filed timely.

He contends, however, that equitable tolling should be applied in

his case. Tiner asserts that the State, the district attorney,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-50530 -2-

and his attorney on direct appeal would not provide him a copy of

his state records. Tiner contends that his inability to obtain

the record prevented him from filing a timely § 2254 petition.

The statute of limitations,

(d)(1), is

subject to equitable tolling in rare and exceptional

circumstances. Davis v. Johnson,

(5th Cir.

1998), cert. denied,

(1999). “[E]quitable

tolling applies principally where the plaintiff is actively

misled by the defendant about the cause of action or is prevented

in some extraordinary way from asserting his rights.” Felder v.

Johnson,

(5th Cir. 2000)(internal quotations

and citation omitted). Tolling should not be applied “unless the

circumstances presented in a particular case are on a par with

the conditions listed in § 2244(d).” See Felder,

.

Tiner’s allegations do not constitute rare and exceptional

circumstances warranting equitable tolling. Tiner has not shown

that the State actively misled him or prevented him from filing a

timely § 2254 petition. Accordingly, the district court’s

judgment dismissing Tiner’s § 2254 petition as time-barred is

AFFIRMED.

AFFIRMED; MOTION DENIED.