|RICHARD ALLEN THORNTON,||
On appeal, Mr. Thornton argues that barring his first federal habeas petition would constitute an unconstitutional suspension of the writ and that he is "in custody" on the 1979 conviction because it is being used to enhance his present sentence. We are in agreement with the district court that the former argument is addressed by Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998), and that Mr. Thornton has not demonstrated that his situation falls within any exception that might render the habeas remedy inadequate or ineffective. Because Mr. Thornton's petition is untimely, we need not reach his "in custody" argument.
We DENY Mr. Thornton's motion for leave to proceed on appeal without prepayment of fees or costs, DENY a certificate of appealability for want of "a substantial showing of the denial of a constitutional right," 28 U.S.C. §
2253(c)(2), and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.