Free USCA Order Terminating Appeal - District Court of Delaware - Delaware

Case 1:04-cv-00363-KAJ CPS-288

Document 34

Filed 08/09/2006 Page 1 of 1 July 27, 2006

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT C.A. No. 06-1578 RICHARD D. MCCANE VS. WARDEN RICHARD KEARNEY, ET AL. (D. DEL. CIV. NO. 04-CV-00363) Present: BARRY, SMITH AND NYGAARD, CIRCUIT JUDGES Submitted is appellant's request for a certificate of appealability under 28 U.S.C. § 2253(c)(1); in the above-captioned case. Respectfully,

Clerk MMW/DMN/zm/clw ORDER The foregoing request for a certificate of appealability is denied, as jurists of reason could not debate that the District Court properly denied Appellant's 28 U.S.C. § 2254 habeas petition as untimely filed. 28 U.S.C.§ 2244(d)(1)(A). As the District Court explained, statutory tolling cannot save Appellant's petition from dismissal, and Appellant has made no showing sufficient to warrant equitable tolling. 28 U.S.C. § 2244(d)(2); Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998).

By the Court,

/s/ Richard L. Nygaard Circuit Judge Dated: August 9, 2006 CLW/cc: Mr. Richard D. McCane Gregory E. Smith, Esq.