* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. 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§ 2254 petition as timebarred. TinerÂ’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, 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, 28 U.S.C. § 2244(d)(1), is subject to equitable tolling in rare and exceptional circumstances. Davis v. Johnson , 158 F.3d 806, 811-12 (5th Cir. 1998), cert. denied , 119 S. Ct. 1474 (1999). § 2244(d).” See Felder , 204 F.3d at 172.

Tiner§ 2254 petition. Accordingly, the district court§ 2254 petition as time-barred is AFFIRMED.

AFFIRMED; MOTION DENIED.

No. 99-50530