alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Michael R. MURPHY, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Florida Attorney General, Respondents-Appellees.

No. 07-10786.

United States Court of Appeals, Eleventh Circuit.

May 29, 2008.

*878Rosanne L. Brady, Tampa, FL, for Petitioner-Appellant.

Patricia Ann McCarthy, Office of Atty. Gen./Dept. of Legal Affairs, Tampa, FL, for Respondents-Appellees.

Before CARNES and MARCUS, Circuit Judges, and DuBOSE,* District Judge.

*

 Honorable Kristi K. DuBose, United States District Judge for the Southern District of Alabama, sitting by designation.

PER CURIAM:

In this appeal from the district court’s denial of a 28 U.S.C. § 2254 petition on statute of limitations grounds, the parties have addressed a number of issues involving application of § 2244(d). We need address only one of them: whether petitioner’s second Rule 3.850 motion was “properly filed” in the Florida state courts within the meaning of § 2244(d)(2).

A petition dismissed in whole or part because it was untimely is not properly filed for § 2244(d)(2) purposes. *See Carey v. Saffold,*536 U.S. 214, 226, 122 S.Ct. 2134, 2141, 153 L.Ed.2d 260 (2002) (if a state court held that a petition was untimely “that would be the end of the matter, regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was ‘entangled’ with the merits”). In affirming Murphy’s second petition, the Second District Court of Appeals cited five earlier DCA decisions. *See Murphy v. State,*937 So.2d 132 (Fla. 2d DCA 2006) (unpublished table decision). In one of those decisions that the state appellate court relied on the denial of relief had been affirmed solely because the petition was untimely, in one the denial had been affirmed solely because the petition lacked merit, and in the other three the denial had been affirmed both because the petition was untimely and lacked merit. *See Pope v. State,*702 So.2d 221, 223-24 (Fla.1997); *Joseph v. State,*835 So.2d 1221, 1221-22 (Fla. 5th DCA 2003); *Brown v. State,*827 So.2d 1054, 1055 (Fla. 2d DCA 2002); *Green v. State,*765 So.2d 825, 825 (Fla. 2d DCA 2000); *Jackson v. State,*640 So.2d 1173, 1174 (Fla. 2d DCA 1994). From that fact we conclude that the denial of Murphy’s second Rule 3.850 motion was affirmed both because it was untimely and because it lacked merit. That means the motion was not “properly filed” for § 2244(d)(2) purposes. *See Pace v. DiGuglielmo,*544 U.S. 408, 413-17, 125 S.Ct. 1807, 1812-14, 161 L.Ed.2d 669 (2005); *Carey,*536 U.S. at 226-27, 122 S.Ct. at 2141.

Because Murphy’s second Rule 3.850 motion was not properly filed, it did not give him the benefit of the § 2244(d)(2) tolling provision. As a result, there is a period of more than a year before Murphy filed his § 2254 petition in the district court during which he had no properly filed state collateral petition pending to toll the running of the limitations period. It follows that Murphy’s § 2254 petition was due to be denied under § 2244(d)(1) regardless of how his earlier Rule 3.850 motion is treated.

AFFIRMED.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-2043

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HERMAN E. GREER; HERMAN E. GREER, Trustee of

Greer Farm Trust,

Defendants - Appellants,

and

HELEN G. MCKINNEY; HELEN G. MCKINNEY,

Executrix of the Estate of Elise Greer; STATE

OF NORTH CAROLINA; TRANSYLVANIA COUNTY; LISA

GREER WHITMIRE; TIMOTHY C. WHITMIRE, Trustee

of Greer Farm Trust,

Defendants.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (CA-03-223-1)

Submitted: April 21, 2006 Decided: May 24, 2006

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit

Judge.
- 2 -

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Herman E. Greer, Appellant Pro Se. Teresa Ellen McLaughlin;

Patricia McDonald Bowman, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 3 -

PER CURIAM:

Herman E. Greer appeals the district court’s orders

holding that Transylvania County, North Carolina, and the State of

North Carolina have valid tax liens against a one-acre tract of

land in Transylvania County; reducing a tax assessment against

Greer to judgment and entering judgment for the United States in

the amount of $320,544 plus interest; ordering foreclosure on and

sale of the one-acre tract; and finding, after trial, that a

twenty-acre tract of land conveyed to the Greer Farm Trust cannot

be used to satisfy Greer’s tax liabilities. We have considered the

arguments raised by Greer and find them to be without merit.

Because the assessment against Greer for tax year 1989 erroneously

included $67,000 used to purchase the twenty-acre tract, the matter

is remanded for the sole purpose of recalculating the income

ascribed to Greer for the year 1989, recomputing the tax assessment

for that year, and recomputing the total judgment against Greer.

We accordingly affirm in part and vacate and remand in part. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART
100 A.3d 189

#### IN THE MATTER OF ANDREW J. BREKUS, AN ATTORNEY AT LAW (ATTORNEY NO. 042361986).

October 21, 2014.

ORDER

The Disciplinary Review Board having filed with the Court its decision in DRB 13-397, concluding on the record certified to the Board pursuant to *Rule*l:20^4(f) (default by respondent) that ANDREW J. BREKUS, formerly of NEWTOWN SQUARE, PENNSYLVANIA, who was admitted to the bar of this State in 1986, and who has been suspended from the practice of law since September 1, 2008, should be suspended from the practice of law for a period of three years for violating *RPC*8.1(b) (failure to reply to a lawful demand for information to a disciplinary authority), and *RPC*8.4(d) (conduct prejudicial to the administration of justice),

And ANDREW J. BREKUS having failed to appear on the Order directing him to show cause why he should not be disbarred or otherwise disciplined;

And good cause appearing;

It is ORDERED that ANDREW J. BREKUS is suspended from the practice of law for a period of three years, effective immediately; and it is further

ORDERED that the entire record of this matter be made a permanent part of respondent’s file as an attorney at law of this State; and it is further

ORDERED that respondent continue to comply with *Rule*1:20-20 dealing with suspended attorneys; and it is further

ORDERED that pursuant to *Rule*l:20-20(c), respondent’s failure to comply with the Affidavit of Compliance requirement of *Rule*l:20-20(b)(15) may (1) preclude the Disciplinary Review Board from considering respondent’s petition for reinstatement *2for a period of up to six months from the date respondent files proof of compliance; (2) be found to constitute a violation of *RPC*8.1(b) and *RPC*8.4(e); and (3) provide a basis for an action for contempt pursuant to *Rule*1:10-2; and it is further

ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs and actual expenses incurred in the prosecution of this matter, as provided in *Rule*1:20-17.
<TABLE> <S> <C>

<PAGE>
<ARTICLE> 5
       
<S>                             <C>
<PERIOD-TYPE>                   3-MOS
<FISCAL-YEAR-END>                          OCT-31-1997
<PERIOD-START>                             NOV-01-1996
<PERIOD-END>                               JAN-31-1997
<CASH>                                           17025
<SECURITIES>                                         0
<RECEIVABLES>                                  1288670
<ALLOWANCES>                                     64188
<INVENTORY>                                     840200
<CURRENT-ASSETS>                                 11828
<PP&E>                                         3707455
<DEPRECIATION>                                 2131410
<TOTAL-ASSETS>                                 4013707
<CURRENT-LIABILITIES>                          2636416
<BONDS>                                              0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                     399044
<COMMON>                                          1382
<OTHER-SE>                                    (221717)
<TOTAL-LIABILITY-AND-EQUITY>                   4013707
<SALES>                                        1813397
<TOTAL-REVENUES>                               1813397
<CGS>                                          1479778
<TOTAL-COSTS>                                  1479778
<OTHER-EXPENSES>                                304097
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                               57869
<INCOME-PRETAX>                                (28347)
<INCOME-TAX>                                         0
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<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                   (28347)
<EPS-PRIMARY>                                     0.00
<EPS-DILUTED>                                     0.00
        

</TABLE>
<TABLE> <S> <C>


<ARTICLE>                     5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements for the nine months ended July 31, 1999 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>

<S>                             <C>
<PERIOD-TYPE>                                9-MOS
<FISCAL-YEAR-END>                            JAN-31-1999
<PERIOD-START>                               OCT-31-1998
<PERIOD-END>                                 Jul-31-1999
<CASH>                                       4,628
<SECURITIES>                                  0
<RECEIVABLES>                                  244,194
<ALLOWANCES>                                   15,000
<INVENTORY>                                    19,190
<CURRENT-ASSETS>                               335,472
<PP&E>                                         1,973,409
<DEPRECIATION>                                 831,325
<TOTAL-ASSETS>                                 1,830,577
<CURRENT-LIABILITIES>                          2,626,298
<BONDS>                                        0
<PREFERRED-MANDATORY>                          0
<PREFERRED>                                    0
<COMMON>                                       437
<OTHER-SE>                                     (796,158)
<TOTAL-LIABILITY-AND-EQUITY>                   1,830,577
<SALES>                                        1,035,144
<TOTAL-REVENUES>                               1,038,116
<CGS>                                          394,391
<TOTAL-COSTS>                                  394,391
<OTHER-EXPENSES>                               0
<LOSS-PROVISION>                               0
<INTEREST-EXPENSE>                             100,688
<INCOME-PRETAX>                                (592,753)
<INCOME-TAX>                                   0
<INCOME-CONTINUING>                            0
<DISCONTINUED>                                 0
<EXTRAORDINARY>                                0
<CHANGES>                                      0
<NET-INCOME>                                   (592,753)
<EPS-BASIC>                                  (0.14)
<EPS-DILUTED>                                  (0.14)



</TABLE>
[Federal Register Volume 66, Number 249 (Friday, December 28, 2001)]
[Notices]
[Pages 67318-67319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31962]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment Standards Administration


Proposed Collection; Comment Request; Correction

ACTION: Correction.

-----------------------------------------------------------------------

SUMMARY: In Federal Register Volume 66, Number 244, beginning on page 
65513 in the issue of Wednesday, December 19, 2001, under Current 
Actions, under Average hours per response, make the following 
corrections: On page 65513, Supplementary Information, Background, 
third sentence, reads ``This information collection contains all 
recordkeeping and reporting requirements which are derived from the 
implementing regulations found at Title 41 of the Code of Federal 
Regulations, Chapter 60.'' Strike the word ``all''. On page 65514, the 
Average hours per response for the Standard Form 100 was previously 
listed as 3.8

[[Page 67319]]

hours. This should be changed to 3.7 hours.

    Dated: December 20, 2001.
Margaret J. Sherrill,
Chief, Branch of Management Review and Internal Control, Division of 
Financial Management, Office of Management, Administration and 
Planning, Employment Standards Administration.
[FR Doc. 01-31962 Filed 12-27-01; 8:45 am]
BILLING CODE 4510-CM-M
<PAGE>

                                                                    EXHIBIT 99.1

                       DIVALL INSURED INCOME PROPERTIES 2
                               LIMITED PARTNERSHIP

                   CERTIFICATION OF PERIODIC FINANCIAL REPORT
                       PURSUANT TO 18 U.S.C. SECTION 1350

         Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906
of the Sarbanes-Oxley Act of 2002, the undersigned officer of Divall Insured
Income Properties 2 Limited Partnership (the "Company") certifies that the
Quarterly Report on Form 10-Q of the Company for the three month period ended
March 31, 2003 fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 and information contained in that Form 10-Q
fairly presents, in all material respects, the financial condition and results
of operations of the Company.

                              THE PROVO GROUP, INC., General Partner

Dated: May 15, 2003        By             /s/ Bruce A. Provo
                             ---------------------------------------------------
                                          President, Chief Executive Officer and
                                          Chief Financial Officer

  This certification is made solely for the purpose of 18 U.S.C. Section 1350,
   subject to the knowledge standard contained therein, and not for any other
                                    purpose.
<TABLE> <S> <C>

<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEET AT MARCH 31, 1998 (UNAUDITED) AND THE
CONDENSED CONSOLIDATED STATEMENT OF INCOME FOR THE THREE MONTHS ENDED MARCH 31,
1998 OF CARAUSTAR INDUSTRIES, INC. AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
       
<S>                             <C>
<PERIOD-TYPE>                   3-MOS
<FISCAL-YEAR-END>                          DEC-31-1998
<PERIOD-START>                             JAN-01-1998
<PERIOD-END>                               MAR-31-1998
<CASH>                                           9,215
<SECURITIES>                                         0
<RECEIVABLES>                                   83,018<F1>
<ALLOWANCES>                                         0
<INVENTORY>                                     69,047
<CURRENT-ASSETS>                               167,815
<PP&E>                                         494,074
<DEPRECIATION>                                (182,592)
<TOTAL-ASSETS>                                 598,694
<CURRENT-LIABILITIES>                           86,111
<BONDS>                                        232,242<F2>
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                         2,528
<OTHER-SE>                                     218,880
<TOTAL-LIABILITY-AND-EQUITY>                   598,694
<SALES>                                        176,871
<TOTAL-REVENUES>                               176,871
<CGS>                                          127,116
<TOTAL-COSTS>                                  127,116
<OTHER-EXPENSES>                                     0
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                               3,699
<INCOME-PRETAX>                                 21,763
<INCOME-TAX>                                     8,131
<INCOME-CONTINUING>                             13,177
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                    13,177
<EPS-PRIMARY>                                     0.52
<EPS-DILUTED>                                     0.52
<FN>
<F1>(Receivables) are presented net of the allowance for doubtful accounts.
<F2>(Bonds) represent revolving credit loans and long-term debt, less current
maturities.
</FN>
        

</TABLE>
#### OREGON MUTUAL INSURANCE COMPANY, Plaintiff, v. SEATTLE COLLISION CENTER INC.; Todd M. Sullivan; Karen Sullivan, Defendants-third-party-plaintiffs—Appellants, v. American States Insurance Company; Safeco Insurance Company of America, Third-party-defendant—Appellees.

No. 09-36105.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 2010.

Filed Nov. 16, 2010.

*250Timothy M. Blood, Esquire, Richard L. Martens, Senior, Steven A. Stolle, Esquire, Martens & Associates P.S., Seattle, WA, for Defendants-third-party-plaintiffs-Appellants.

Thomas J. Braun, William A. Pelandini, Nicoll Black & Feig PLLC, Seattle, WA, for Third-party-defendant-Appellees.

Before: THOMAS and M. SMITH, Circuit Judges, and EZRA, District Judge.*

*

 The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.

MEMORANDUM **

Seattle Collision Center Inc. and its principal owners, Todd and Karen Sullivan (collectively “SCC”), appeal the district court’s judgment granting in part and denying in part the motion for summary judgment brought by third-party defendants American States Insurance Company and Safeco Insurance Company of America (collectively “Safeco”). We affirm. Because the parties are familiar with the factual and procedural history of this case, we need not recount it here.

I

Contrary to SCC’s assertion, the district court had the power to exercise supplemental jurisdiction, even though it had resolved the claims over which it had original jurisdiction. 28 U.S.C. § 1367(a). Therefore, retaining supplemental jurisdiction in this case was a proper exercise of discretion by the district court. Acri *v. Varian Assocs., Inc.,*114 F.3d 999, 1000 (9th Cir.1997).

II

The district court properly granted summary judgment on SCC’s claims. “The duty to defend arises when a complaint against the insured, construed liberally, alleges facts which could, if proven, impose liability upon the insured within the policy’s coverage.” *Am. Best Food, Inc. v. Alea London, Ltd,*168 Wash.2d *251398, 404-05, 229 P.3d 693, 696 (Wash.2010) (quotations omitted). The facts alleged in the underlying complaint do not give rise to a duty to defend. The allegations arise solely out of violations of Washington’s Model Toxics Control Act and only claim past and future remedial action costs associated with traditional environmental pollution. Safeco’s pollution exclusion clauses, as interpreted under Washington law, clearly and unambiguously exclude liability for such traditional environmental harms. *Kent Farms, Inc. v. Zurich Ins. Co.,*140 Wash.2d 396, 400-02, 998 P.2d 292, 295-96 (Wash.2000).

Ill

The district court did not improperly allocate the burden of proof. *McDonald v. State Farm Fire and Cas. Co.,*119 Wash.2d 724, 731, 837 P.2d 1000, 1003-05 (Wash.1992). It did not abuse its discretion in striking the sur-reply brief. SCC has had a full opportunity to present its arguments to us on the merits.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
#### Linda LAWRENCE, wife of Clement F. Perschall Jr.; Clement F. Perschall Jr., Plaintiffs-Appellants v. FIDELITY NATIONAL INSURANCE COMPANY; Eagan Insurance Agency Inc., Defendants-Appellees.

No. 07-30632.

United States Court of Appeals, Fifth Circuit.

May 28, 2008.

Clement F. Perschall, Jr., for Plaintiffs-Appellants.

Gerald Joseph Nielsen, Nielsen Law Firm, Metairie, LA, Max Jeffrey Cohen, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, LA, for Defendants-Appellees.

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.

PER CURIAM: *

We find that the district court committed no reversible error and affirm on the basis of the district court opinion. *See*5th Cir. R. 47.6.

AFFIRMED.

*

 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.
[Federal Register Volume 66, Number 247 (Wednesday, December 26, 2001)]
[Notices]
[Page 66413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31596]


-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 4718-011]


Cocheco Falls Associates; Notice of Availability of Environmental 
Assessment

December 18, 2001.
    An environmental assessment (EA) is available for public review. 
The EA is for petitions to revise the license for the Cocheco Falls 
Project with respect to fish passage. The EA recommends reasonable 
modifications to project structures and operation to benefit fish 
passage and that such modifications would not constitute a major 
federal action significantly affecting the quality of the human 
environment.
    The EA was written by staff in the Office of Energy Projects, 
Federal Energy Regulatory Commission. Copies of the EA can be viewed in 
the Reference and Information Center, Room 2A, of the Commission's 
Offices at 888 First Street, NE., Washington, DC 20426. The EA may also 
be viewed on the web at http://www.ferc.gov using the ``RIMS'' link-
select ``Docket #'' and follow the instructions (call 202-208-2222 for 
assistance).
    Comments on the EA are invited. Any comments, conclusions, or 
recommendations that draw upon studies, reports, or other working 
papers for substance should be supported by appropriate documentation. 
Comments should be filed within 30 days from the date of this notice 
with Linwood A. Watson, Jr., Acting Secretary, 888 First Street, NE., 
Washington, DC 20426, and should reference Project No. 4718.
    For further information, please contact Mr. Robert H. Grieve at 
(202) 219-2655.

Linwood A. Watson, Jr.,
Acting Secretary.
[FR Doc. 01-31596 Filed 12-21-01; 8:45 am]
BILLING CODE 6717-01-P