62 B.R. 642 (1986)
In re ACCESS EQUIPMENT, INC., Debtor.
Bankruptcy No. 86-10309-JG.
United States Bankruptcy Court, D. Massachusetts.
July 9, 1986.
John A. Houlihan, Providence, R.I., for debtor.
Thomas P. Billings, Boston, Mass., for Access Satellite Intern. (USA), Inc.

MEMORANDUM
JAMES N. GABRIEL, Bankruptcy Judge.
This matter is before the Court upon the motion of Access Satellite International (USA), Inc. ("Satellite") for relief from stay. Satellite seeks to recover eleven elevating work platforms and 253 associated mast sections from Access Equipment, Inc. ("Equipment" or the "debtor").
This bankruptcy proceeding was commenced on March 13, 1986 by Equipment's filing of a voluntary petition under Chapter 11 of the Bankruptcy Code. Prior to that date, Equipment was embroiled in litigation with Satellite and Access Exports, Ltd. ("Exports") in the Middlesex Superior Court. Satellite had filed suit against Equipment on February 22, 1986 for recovery *643 of its equipment and money damages, and Exports had joined the suit to recover possession of nine elevating work platforms and forty mast sections, as well as money damages. One half-hour before trial was to begin in the Superior Court, Equipment filed its petition, thereby staying the Superior Court action.
Satellite and Exports immediately filed a motion for relief from stay, seeking inter alia to proceed with the state court action. On March 14, 1986, this court denied the motion for relief from stay insofar as it sought to allow the Superior Court trial to proceed, but scheduled evidentiary hearings on other aspects of the motion.
On April 1, May 14, and May 15, 1986, the parties presented oral testimony. At the close of trial on May 15, Equipment conceded Exports proprietary interest in nine work platforms and forty mast sections. Therefore, the sole question before the Court is whether Equipment or Satellite owns the eleven work platforms and associated mast sections remaining in Equipments' fleet. The answer to that question turns on whether the transactions pursuant to which Equipment obtained the machines were true leases, as Satellite contends, or financing arrangements, as the debtor contends.
Satellite manufactures ancillary equipment for the elevating work platforms for use in this country. It sells these platforms and ancillary equipment to distributors and direct customers in areas not covered by distributorship agreements, and it rents, services and repairs work platforms as well.
The basic unit, consisting of a forty-foot wide platform, a road towable chassis, and four mast sections, retails for $161,276; additional mast sections are $1,045 apiece. Satellite sells the elevating work platforms to its distributors at a substantial discount, however. In March of 1985, for example, there existed a special concessionary price of $35,697 as well as a regular distributors' price of $44,621 per platform.
Satellite initially awarded the New England distributorship for work platforms to Exports, an English limited company with no shareholding relationship to Satellite or its affiliates. Exports purchased nine work platforms and forty mast sections from Satellite, and its managing director, Julian C.H. Dunlop ("Dunlop") moved to the United States in the summer of 1984 to administer the business of renting the machines to construction firms in New England.
In early February of 1985, at a directors' meeting of Exports, Dunlop informed his fellow directors that he had formed a Massachusetts corporation called Access Equipment, Inc., the debtor herein. Ostensibly, the reasons for the formation of the new company were that it was preferable to do business in the United States through an American company and that Exports' name was misleading since, in fact, it was not in the export business and did not export anything. Various relationships between Exports and Equipment were discussed, including a parent-subsidiary relationship, but no final determination regarding a shareholding arrangement between the two companies was made by the directors at that time.
Nevertheless, in a letter dated February 19, 1986, Dunlop, as managing director of Exports, requested Satellite to make necessary adjustments to its files to effectuate the transfer of the New England distributorship from Exports to Equipment. Satellite did not act on Dunlop's request until May 11, 1986, however, when, through its Assistant Secretary and Operations Manager, Richard L. Whitacre, it wrote "[w]e are in the process of changing our records to now indicate the distributorship for New England United States to be Access Equipment, Inc. and in so doing approve this amendment to the original agreements with Access Exports, Ltd." As a consequence of its acceptance of the transfer, which acceptance was predicated on the erroneous assumption that Equipment was a subsidiary of Exports, the contents of Satellite's file for the distributorship, including a distributorship agreement, a purported Equipment Rental Agreement and all the debt were changed to reflect Equipment's *644 new status. Furthermore, two work platforms and 176 mast sections which Exports had rented from Satellite since November 1984 became the responsibility of Equipment. In connection with that transaction, Satellite had sent to Exports, care of Dunlop, an "Equipment Rental Agreement" for signature which had neither been signed nor disavowed by Dunlop. Representatives of Satellite, therefore, assumed its terms controlled the relationship between Satellite and Exports and later between Satellite and Equipment.
In the ordinary course of Satellite's business, the Equipment Rental Agreement served as a master lease. The master lease was supplemented by separate Equipment Rental Applications which explicitly reference the Equipment Rental Agreement and set forth the rental term and price. In renting work platforms to its customers, Equipment used an identical form.
On May 7, 1985, Dunlop wrote to Whitacre enclosing three Equipment Rental Applications covering eight machines, including the two machines previously rented by Exports. Each application provided that the annual rent would be $10,000 per platform and $360 per mast section. An Equipment Rental Application for three additional work platforms, transmitted on May 22, 1985, contained identical terms. Three of the four applications additionally provided that fifty per cent of the rent paid could be credited against the purchase price of the machines.
The price, option and duration terms appearing on the Equipment Rental Applications actually had been agreed to on March 16, 1985 at a meeting at which representatives of Satellite, Exports, and Equipment were present. Additionally, the parties agreed at that meeting to review the purchase price of the machines "from the current $35,697 to the distributors [sic] price of $44,621, similarly with mast sections." Thus, it is apparent from the Equipment Rental Applications that the $35,697 price was raised to $36,000.
At or around the time of the March 16th meeting, Dunlop and A. Geoffrey Raine ("Raine"), Satellite's President, discussed the sale of ten platforms by Satellite to Equipment. Raine testified that Equipment agreed to buy the platforms, if it could obtain the necessary outside financing to purchase them. To accommodate Equipment, Satellite, by letter dated April 30, 1986, offered to extend its normal payment terms for three to six months. On that same date, Satellite invoiced Equipment for $360,000, the purchase price for ten machines and, thereafter, carried that amount on its books for a time as an account receivable. However, Satellite continued to bill Equipment for rental fees for the use of the equipment. Equipment never paid Satellite any amount toward the purchase price, although it did make several rental payments. When it became clear that Equipment was not going to be able to obtain the requisite financing, despite Satellite's offer to assist Equipment in obtaining it, Satellite issued a credit memorandum to Equipment for $360,000 purchase price and reversed the sale on its books. Significantly, the credit memorandum was issued on November 6, 1985, approximately 180 days after Satellite's offer to extend its payment terms for that amount of time.
Approximately three and one half months later, on February 21, 1986, John W. Garton, one of Satellite's directors wrote to Equipment to terminate the lease agreements between Satellite and Equipment on grounds of nonpayment, insolvency and misrepresentation of its relationship with Exports. The next day Satellite, joined by Exports, commenced suit in the Middlesex Superior Court.

CONCLUSIONS OF LAW[1]
The question of whether particular transactions in the form of leases are "true leases" or "leases intended for security" has spawned a considerable number of civil cases and is "one of the most hotly litigated topics in commercial [and bankruptcy] *645 law." See American Standard Credit, Inc. v. National Cement Co., 643 F.2d 248, 261 (5th Cir.1981), and authorities cited therein. In determining whether a contract is a "true lease" or one intended for security, "courts `do not consider what description the parties have given to it, but what is its essential character.'" Szabo Food Service, Inc., of North Carolina v. Balentine's, Inc., 285 N.C. 452, 206 S.E.2d 242, 15 U.C.C.Rep. 170, 177 (1974); accord In re Mohawk Industries, Inc., 49 B.R. 376, 378 (Bankr.D.Mass.1985) (". . . [I]t is well settled that Massachusetts and the majority of other jurisdictions look to substance over form when deciding if a transaction is a lease or a conditional sale."); In re Keydata Corp., 18 B.R. 907, 910 (Bankr. D.Mass.1982) ("[T]he court must look not only at the intentions of the parties but the facts and effects of their actions.").
Equipment argues that the economic realities of the transactions at issue show that the arrangement between Satellite and Equipment more closely resembles a financing arrangement than a true lease. Indeed, it posits that a de facto financing arrangement existed and that the arrangement by which fifty percent of the yearly rental payments (i.e., $5,000) could be deducted from the purchase price (i.e., $36,000) allowed Equipment to obtain an equity interest in the machinery equal to approximately one half of its supposed rental payments, without requiring the immediate payment of the purchase price. According to Equipment, Satellite achieved its objective of selling the machinery by deferring payment of the purchase price to a balloon payment at the end of the lease term and accepting a combination of interest and principal in the form of supposed rental payments over the term of the purported lease agreement.
Equipment relies heavily on the terms of the Equipment Rental Agreement dated November 11, 1984 to support its position that Equipment obtained an equity interest, specifically, paragraph 1.(e),[2] and, in fact, purchased, not leased work platforms from Satellite. It emphasizes sections in the Equipment Rental Agreement relating to 1) Equipment's obligation to provide comprehensive insurance in favor of Satellite; 2) Equipment's burden to pay taxes on the equipment; 3) Equipment's responsibility for maintaining the machines; 4) Satellite's ability to accelerate payments in the event of a default; 5) Satellite's disclaimer of all express and implied warranties; 6) the imposition of the risk of loss on Equipment; and 7) Equipment's obligation to hold Satellite harmless.
Satellite characterizes Equipment's argument as absurd. It emphasizes that the option exercise price, which was 86% of the price new, was far more than nominal and that Equipment consistently treated the transactions as leases. Furthermore, it dismisses the seven factors enunciated by Equipment as typical commercial lease drafting devices. Clearly, the facts and the law support Satellite's position. Indeed, the very cases cited by Equipment compel a decision for Satellite.
U.C.C. § 1-201(37) defines a security interest. Its aim is to prevent buyers and sellers from disguising secured installment sales as leases, thereby placing them beyond the reach of U.C.C. provisions governing secured transactions. According to the United States Court of Appeals for the Tenth Circuit, its language suggests a four-step approach to determine whether a purported lease is in reality a secured transaction. As succinctly stated by that court:
. . . [T]he presence of a purchase option does not automatically preclude a finding *646 of a true lease. . . . [I]f a purchase option exists and it or other terms in the `lease' permit the `lessee' to become full owner by merely paying no or nominal consideration after complying with its terms, . . . [t]he lease is deemed a secured transaction as a matter of law and thus subject to the provisions of U.C.C. Article Nine See, e.g., Percival Construction Co. v. Miller & Miller Auctioneers, Inc., 532 F.2d 166, 171-72 (10th Cir.1976), aff'g 387 F.Supp. 882 (W.D. Okl.1973); Citicorp Leasing, Inc. v. Allied Institutional Distributors, Inc., 454 F.Supp. 511, 516 (W.D.Okl.1977); Dynalectron Corp. v. Jack Richards Aircraft Co. 337 F.Supp. 659, 661 (W.D.Okl. 1972). . . . [I]f the option does not require greater than nominal consideration for full ownership, a true lease is usually found. See, e.g., Crest Investment Trust, Inc. v. Atlantic Mobile Corp., 252 Md. 286, 250 A.2d 246, 249 (1969) (option price over 50% of list price); Xerox Corp. v. Smith, 67 Misc.2d 752, 325 N.Y.S.2d 682, 682-83 (N.Y.Civ.Ct.1971) (option price 50% of list).
* * * * * *
. . . [E]ven though nothing in the `lease' may permit purchase at nominal consideration, the `lease' will still be deemed one intended for security if the facts otherwise expose economic realities tending to confirm that a secured transfer of ownership is afoot. See, e.g., In re Tulsa Port Warehouse Co., 29 U.C.C.Rep. Serv. 1608, 1612-13 (N.D.Okl.1980); In re Brookside Drug Store, Inc., 3 B.R. 120, 29 U.C.C.Rep.Serv. 230, 234-36 (Bkrtcy.Conn.1980).
Matter of Fashion Optical, Ltd., 653 F.2d 1385, 1388-89 (10th Cir.1981).
The most significant factor in distinguishing the conditional sale masquerading as a lease and a true lease is the relationship of the option price to the value of the goods at the end of the lease term. In the instant case, the Equipment Rental Agreement, which was not signed by the representatives of Satellite, Equipment or Exports, contains no option provision. However, by the March 16, 1985 agreement of the parties, Equipment was granted the option to purchase work platforms for $36,000, less one half the rental payments made, a price that cannot be considered nominal by any stretch of the imagination. As pointed out by Satellite and relied upon by a number of courts, "[I]f the option price amounts to 25% or more of the total list price, then the `lease' is not one intended for security." J. White & R. Summers, Handbook of the Law under the Uniform Commercial Code 881 (2d ed. 1980) citing In re Wheatland Electric Products Company, 237 F.Supp. 820, 2 U.C.C.Rep. 486 (W.D.Pa.1964) and In re Alpha Creamery, 4 1:U.C.C.Rep. 794 (Bankr.W.D.Mich.1967). Commentators conclude that this rule of thumb is consistent with the "economic realities test." That test provides that if at the end of the lease term the only sensible course economically for the lessee would be for him to exercise his option the transaction is really a secured installment sale to which Article Nine applies. Accordingly, "if the option price amounts to 25% (or more) of the total list price, then it would appear that the lessee has been paying true rent rather than `building up an equity,' and it would not follow that the only sensible course for him would be to exercise his option." J. White & R. Summers, supra. Given the fact that the option price was 86% of the purchase price, assuming a lease term of one year, it certainly cannot be said that the terms of the lease and option to purchase are such that the only sensible course for Equipment at the end of the lease term would be to exercise its option to become the owner of the goods.
Besides what the court considers to be the salient factor in determining whether a lease is a "true lease"  the relationship of the option price to the value of the equipment at the end of the lease terms  courts have considered a number of other factors, including those listed by Judge Krechevsky in Matter of Brookside Drug Store, Inc., 3 B.R. 120 (Bankr.D.Conn.1980): 1) whether the lessee acquires equity in the property; 2) whether the lessor is a financing agency; *647 3) whether the lessee paid sales tax upon acquiring the equipment; 4) whether the lessee pays all taxes incident to ownership; 5) whether the lessee is responsible for comprehensive insurance; 6) whether the lessee is responsible for license fees and maintenance; 7) whether the lessee bears the risk of loss; 8) whether the lessor may accelerate payments upon default; 9) whether the equipment was preselected by the lessee and purchased by the lessor for the lease; 10) whether the lessee paid a security deposit; 11) whether the lessee permits or joins the lessor in filing a U.C.C. financing statements; 12) whether default provisions are inordinately favorable to the lessor; 13) whether the lease contains provisions for liquidated damages; 14) whether the lease disclaims warranties of fitness and for merchantability; and 15) whether the aggregate rentals approximate the value or purchase price of the equipment. See In re Brookside Drug Store, Inc., 3 B.R. at 122-23; see also In re Keydata Corporation, 18 B.R. 907, 910 (Bankr.D.Mass.1982) and cases cited therein in which several of these factors also are enumerated.
Applying these factors, not all of which merit the same weight, to the instant case, it is apparent that although some of the terms of the November 1984 lease agreement are characteristic of leases intended for security the outcome of the application of the majority of the factors weighs in favor of a true lease. Additionally, it is important to recognize that Equipment's argument relative to its obtaining an equity interest in the equipment is spurious.
Case law makes it plain that equity does not mean simply that the lease is for a term and is noncancellable. On the contrary under a "lease" in which the "lessee" acquires an equity interest, "[t]he termination formula recognizes the equity of the `Lessee' in the [leased property] because he is required to bear the loss or receive the gain from its wholesale disposition upon termination of the lease." In re Tulsa Port Warehouse Co. Inc., 690 F.2d 809, 811 (10th Cir.1982), quoting In re Tillery, 571 F.2d 1361, 1365 (5th Cir.1978); see also In re Brookside Drug Store, Inc., 3 B.R. at 123. For example, in In re Tulsa Port Warehouse Co., Inc., the lease provided that at the end of the lease term the lessor would dispose of the vehicle at wholesale in a commercially reasonable manner. If the sale amount turned out to be less than an agreed depreciated value, the lessee would be liable to the lessor for the deficit.
In the instant case, neither the Equipment Rental Agreement nor the Equipment Rental Applications give Equipment such an equity interest since at the end of the lease term Satellite would either take the equipment back or agree to a new term. In the event of premature termination Satellite would take the equipment back and Equipment would remain liable for rentals pursuant to ¶ 1.(e) of the Equipment Rental Agreement. However, Satellite was not required to dispose of the equipment and Equipment was not obligated to bear the loss or entitled to receive the gain from a wholesale disposition.
Equipment primarily relies on two cases, Hannaford Brothers Co. v. State Tax Assessor, 487 A.2d 251, 40 U.C.C.Rep. 374 (Me.1985), and In re Catamount Dyers, Inc., 43 B.R. 564 (Bankr.D.Vt.1984), in support of its position that the cumulative effect of a variety of indicia of ownership is determinative of a conditional sale. However, both cases are distinguishable and neither supports its position when examined closely. In Hannaford, the court found that at the end of the lease term, the lessee would purchase or would cause a third party to purchase the vehicles covered by the contract. In contrast, the Equipment Rental Agreement and the individual Rental Applications in this case do not provide that at the end of the lease term Equipment owns the machines, and they do not obligate Equipment to buy them or cause a third party to buy them. In In re Catamount Dyers, Inc., the court found the "leases" at issues to be conditional sales despite the absence of factors such as 1) the lessee's obligation to buy the goods or automatic ownership of them at the end *648 of the term; 2) the option to purchase the goods at a nominal price; 3) the lessee's obtaining equity in the property; or 4) the lease term approximating the useful life of the property and the resulting inference that the "lessor" will abandon the property to the "lessee." Nevertheless, the court found that the rental payments were a reasonable equivalent of the cost of the items plus interest, and that the insured value of the machines was roughly equivalent to the full lease price during the life of the lease. 43 B.R. at 568. This is simply not the case here since the $10,000 annual rental is by no means roughly equivalent to even the discounted price of $36,000.
In view of the foregoing and the entire record of the case, the Court hereby finds that the transactions at issue are true leases that were validly terminated by letter dated February 21, 1986. The Equipment Rental Agreement and common law provide clear support for Satellite's decision to terminate the leases for nonpayment of rent. As a consequence, Equipment is hereby ordered to turnover the eleven work platforms and 253 mast sections in its possession to Satellite as soon as commercially reasonable arrangements to do can be made.
NOTES
[1]  The parties do not dispute the fact that North Carolina law governs this case.
[2]  That section provides:

Lease Noncancellable; Payments to be Net. Lessee agrees that all rental payments or other sums payable by Lessee hereunder shall be the unconditional obligation of Lessee and shall be made without abatement, reduction, or setoff of any nature, including any thereof [sic] arising out of any present or future claim the Lessee may have against the Lessor or any of its assignees or the manufacturer or vendor of the Equipment. This lease shall not be cancellable or terminable by Lessee prior to the end of the Term except as herein expressly provided.


24 Cal.App.2d 177 (1937)
THE PEOPLE, Respondent,
v.
VIRGIL TRANTHAM, Appellant.
Crim. No. 507.
California Court of Appeals. Fourth Appellate District.
December 22, 1937.
 Morris B. Chain and Abram M. Marks for Appellant.
 U.S. Webb, Attorney-General, and R. S. McLaughlin, Deputy Attorney-General, for Respondent.
 Marks, J.
 By the first count of an information defendant was charged with the violation of section 500 of the Vehicle Code (negligent homicide), and in a second count with violation of section 501 of the same code (driving a motor vehicle while under the influence of intoxicating liquor and causing bodily injury to another). He was acquitted of the first offense charged and convicted of the second.
 He presents three grounds for a reversal of the judgment: (1) that the evidence is insufficient to support the verdict and judgment; (2) that the acquittal of the first charge is *179 in effect an acquittal of the second; and, (3) exclusion of evidence proffered by him.
 At about 6 o'clock on the afternoon of June 20, 1937, defendant was driving his automobile west on Fresno Avenue in Kern County. It came into contact with a motorcycle being driven east on Fresno Avenue by James Massey and caused injuries to Massey which resulted in his death. Counsel for appellant admits that the evidence of intoxication was so sufficient that it cannot be challenged here.
 [1] The act forbidden by law, and committed by defendant while driving his automobile when intoxicated, which supports the conviction, is driving on his left-hand side of the road just before the accident.
 The automobile and motorcycle came into a head-on collision on defendant's right-hand side of the road. It is the theory of the people that defendant was driving on his left side of the road; that to avoid the collision, Massey, who was riding on his own right-hand side of the road, swerved to the left; that at the same time defendant swerved to his right; that these maneuvers brought the two vehicles into collision on the north, or defendant's right-hand side of the road.
 The following evidence supports this theory: "Q. Now, some time shortly after you arrived at the place where the car and motorcycle were, did you make any examination of the road surface, of the road near that car? A. Yes, sir. Q. And what, if anything, did you find? A. Well, I found skid marks on the road where someone had thrown on the brakes and rolled the wheels and skidded from the left hand side of the road over to the right. Q. How close did those skid marks come to the defendant's car? A. Within about six feet. Q. And about how long would you say these skid marks were from the place they began to the place they ended? A. I judge from where the car was standing to where the skid marks started about 23 or 24 feet. ... Q. If you know, Mr. Simms, had any other cars passed and traveled over that portion of the road from the time you arrived at the collision until you saw those marks on the road? A. You mean cars passing the scenes of the accident? Q. Yes, pass over that place where you saw the skid marks? A. No, all cars stopped when they got up there and seen there had been a wreck, stopped the closest place they could stop." *180
 In addition to the foregoing testimony the witness made a diagram of the roadway at the scene of the accident on which he showed skid marks starting well over on the south side of the roadway and veering sharply northerly onto its north side and to the place where the vehicles came into contact.
 This evidence supports the implied finding of the jury that defendant, while under the influence of intoxicating liquor, drove his motor vehicle in a manner forbidden by law which act proximately caused bodily injury to Massey (sec. 501, Vehicle Code) for section 525 of the same code requires a vehicle to be driven on its right-hand side of the road except under conditions not in evidence here.
 [2] Defendant urges that the same act of negligence on his part was involved in both of the crimes charged and that an acquittal of the negligent homicide charge of necessity must have been an acquittal of the driving while intoxicated charge.
 In the recent case of People v. Coltrin, 5 Cal.2d 649 [55 PaCal.2d 1161], this question was considered by the Supreme Court, which said:
 "The constitutional provision referred to relates to a second jeopardy for the same offense. Section 654 of the Penal Code does not apply to statutes which do not make an act or omission punishable in different ways but which name different acts and different offenses, and punish each act separately. (People v. Mehra, 73 Cal.App. 162 [238 P. 802].) If the act involved in one charge is necessarily involved in the other and is merely incidental to that charge but one offense is committed and it cannot be carved into two offenses in order to inflict a double punishment. (People v. Mazzola, 99 Cal.App. 682 [279 P. 211].) But where the two offenses are entirely separate and distinct and the one is not necessarily included in the other, a prosecution for the one is no bar to a prosecution for the other even though the same testimony may be applicable to both. (In re O'Connor, 80 Cal.App. 647 [252 P. 730].) In that case, the court said: 'While a single act may be an offense against two statutes, and thus constitute two crimes, if each statute requires proof of a fact additional to those involved in the other an acquittal or conviction of either does not result in the defendant having been in jeopardy for the other.' In People v. Kerrick, 144 Cal. 46 [77 P. 711], the court said: 'to be "necessarily included" in the offense charged, the lesser offense must *181 not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof. "To entitle a defendant to the plea of autrefois convict of acquit, it is necessary that the offense charged be the same in law and fact." (People v. Helbing, 61 Cal. 620.)' In People v. Day, 199 Cal. 78 [248 P. 250], the court said: 'It may be conceded that if the two counts stated precisely the same offense that an acquittal upon one count would operate as an acquittal upon the other count. ... It is not the great similarity in most of the facts constituting separate offenses but the presence of a fact necessary in one offense and absent in another that determines whether offenses are separate.'"
 When we apply these rules to the facts of the instant case the contention of defendant cannot be sustained. In order to support the conviction under the second count it is necessary that it be established that defendant was operating his car while under the influence of intoxicating liquor. No such proof is required to support a conviction of negligent homicide. Therefore, there is here "a fact necessary in one offense and absent in another that determines" that the offenses are separate.
 [3] Defendant attempted to prove that Massey was intoxicated several hours before the accident. The evidence was excluded and defendant assigns this ruling as error. This contention cannot be sustained. The evidence was too remote in point of time. There was no causal connection offered to be shown between the accident and Massey's intoxication, if he was intoxicated. One intoxicated motorist may not with impunity run down and kill another intoxicated motorist.
 Defendant relies on a short quotation from People v. Hurley, 13 Cal.App.2d 208, at 218 [56 PaCal.2d 978], to support this argument that evidence of the intoxication of Massey should have been admitted under the theory that this intoxication was the proximate cause of the accident. The trouble with this position is that he failed to offer or to show any connection between Massey's intoxication and the accident. Without some connection between the two the evidence was properly excluded.
 The judgment and order appealed from are affirmed.
 Barnard, P. J., and Jennings, J., concurred.


     Case: 13-40717      Document: 00512454063         Page: 1    Date Filed: 11/26/2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
                                      No. 13-40717                          November 26, 2013
                                                                              Lyle W. Cayce
                                                                                Clerk
TIMOTHY SCOTT HARRIMAN,

                                                 Plaintiff - Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; FRANK HOKE;
JOHN BECRAFT,

                                                 Defendants - Appellees.

                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:13-CV-357

Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Timothy Scott Harriman, Texas prisoner # 677187, seeks leave to appeal
in forma pauperis (IFP). He filed a 42 U.S.C. § 1983 action alleging that he
was denied access to the courts due to deficiencies in a prison law library. The
district court dismissed his action as frivolous, denied leave to appeal IFP, and
certified that the appeal was not taken in good faith.

       * 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.
    Case: 13-40717       Document: 00512454063   Page: 2   Date Filed: 11/26/2013

                                  No. 13-40717

        By moving to proceed IFP, Harriman challenges the district court’s
certification that his appeal is not in good faith. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Our inquiry “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted).
        The closest Harriman comes to addressing the district court’s reason for
dismissing his action—a lack of actual harm—is a bare assertion that he was
unable to learn of the limitation period for filing a 28 U.S.C. § 2254 petition
because the defendants “concealed” some law books behind the counter to
prevent prisoners from tearing out pages. He does not even suggest that the
materials were not available for the asking. In addition, Harriman has never
identified a non-frivolous claim that he might have raised at any time but for
the alleged deprivation of legal materials. See Christopher v. Harbury, 536
U.S. 403, 415 (2002) (requiring a prisoner to set forth some non-frivolous
underlying claim that was lost because of the defendants’ wrongful actions).
        Accordingly, the motion for IFP status is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R.
42.2.
        This frivolous appeal earns Harriman a “strike” under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385–87 (5th Cir. 1996).
The district court’s dismissal as frivolous was also a strike. See id. Harriman
is warned that if he accumulates one more strike by bringing another frivolous
action or appeal, he will not be allowed to proceed IFP in any civil action while
incarcerated or detained unless he is in imminent danger of serious physical
injury. See § 1915(g).

                                        2


5 F.3d 535NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Ronald S. BURGO, Plaintiff-Appellee,v.Edwin T. SHIMODA, Defendant-Appellant.
No. 92-16352.
United States Court of Appeals, Ninth Circuit.
Submitted March 10, 1993.Memorandum Filed March 17, 1992.Memorandum Withdrawn Aug. 18, 1993.Decided Aug. 18, 1993.

Before:  WALLACE, Chief Judge, FARRIS, and BRUNETTI, Circuit Judges.

ORDER

1
The memorandum disposition filed on March 17, 1993 is withdrawn.  The attached memorandum disposition is ordered filed.

2
The panel has voted to deny appellant's petition for rehearing and to reject the suggestion for rehearing en banc.

3
The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc.  Fed.R.App.P. 35.

4
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

5
MEMORANDUM*

6
Edwin T. Shimoda, Administrator of the Oahu Community Correctional Center, appeals the district court's denial of his summary judgment motion based on qualified immunity in an action under 42 U.S.C. Sec. 1983 brought by Ronald S. Burgo, a Hawaii state prisoner.  We have jurisdiction to review an appeal of the denial of a summary judgment motion on the ground of qualified immunity.  Mitchell v. Forsythe, 472 U.S. 511, 530 (1985).  We affirm.

7
We review de novo the district court's denial of the defense of qualified immunity.  Lum v. Jensen, 876 F.2d 1385, 1386 (9th Cir.), cert. denied, 493 U.S. 1057 (1990).

8
Burgo alleged that his eighth amendment right not to be subjected to cruel and unusual punishment was violated when Sergeant Supervisor Melvin Kauhane physically attacked him, breaking his jaw and causing other injuries.  It is undisputed that the attack was unprovoked.  Sergeant Kauhane had previously assaulted two other inmates.  The district court denied Administrator Shimoda's summary judgment motion as premature, without prejudice to his reasserting qualified immunity as a defense, on the ground that there were disputed issues of fact about whether Shimoda knowingly failed to take steps to avert further assaults on inmates by Kauhane, thereby displaying deliberate indifference to Burgo's eighth amendment rights.

9
Shimoda contends that the district court erred in denying his motion for summary judgment because (1) the law governing his conduct as Administrator of the prison was not clearly established;  and (2) even if the district court had correctly ruled that Shimoda could be liable if he had been "deliberately indifferent" to the danger of Kauhane assaulting prisoners, Shimoda had not shown "deliberate indifference."

10
Qualified immunity protects government officials who perform discretionary functions from liability for damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), and "could reasonably have been thought consistent with the rights they are alleged to have violated."  Anderson v. Creighton, 483 U.S. 635, 638 (1987).  To determine whether an official is entitled to qualified immunity, a court must determine (1) whether the right allegedly violated was "clearly established" at the time of the alleged violation, and (2) whether, in light of that law, a reasonable official could have believed his conduct to be lawful.  Act Up!/ Portland v. Bagley, No. 90-35888, slip op. 1071, 1076-77 (9th Cir.  Feb. 10, 1993).  The officer should prevail if the right asserted by the plaintiff was not "clearly established" or if the officer could have reasonably believed that his conduct was lawful.  Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991).  Officials are charged with knowledge of relevant law in existence at the time of the alleged violative conduct.  Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988), cert. denied, 490 U.S. 1075 (1989).  Ordinarily, the district court should resolve the question of qualified immunity before trial, Hunter v. Bryant, 112 S.Ct. 534, 536-37 (1991), but if "a genuine issue of fact prevents a determination of qualified immunity at summary judgment, the case must proceed to trial."   Act Up!, No. 90-35888, slip op. at 1079.

11
Shimoda disputes the district court's conclusion that it was clearly established "that a violation of the constitution would occur if a prison official who was in a position to take steps to avert an assault failed to do so intentionally or with deliberate indifference."   At the time of the assault, in March 1988, it was clearly established that the use of excessive force against prisoners by prison personnel violated prisoners' eighth amendment rights.  See McRorie v. Shimoda, 795 F.2d 780, 783-84 (9th Cir.1986).  It was also clear that prison officials would be liable in their personal capacities under section 1983 if their conduct caused the violation.  Id.  (citing Kentucky v. Graham, 473 U.S. 159 (1985)).  Prisoners could state a claim against prison personnel under 42 U.S.C. Sec. 1983 "by establishing that prison personnel acted with 'deliberate indifference' in creating the condition that violates the eighth amendment."  Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988) (citing Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) and Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986)).

12
Shimoda contends, however, that the "deliberate indifference" standard set forth in Leer, 844 F.2d 628, and Berg, 794 F.2d 457, is inapplicable because those cases involved attacks on inmates by other inmates, not attacks on prisoners by prison personnel.  Leer made no such distinction, however, and when Leer was decided, we had previously held that prison officials would be personally liable under section 1983 for a deprivation of a prisoner's eighth amendment rights resulting from an assault by a prison guard if the officials' conduct "caused the deprivation."  McRorie, 795 F.2d at 783 (citing Kentucky v. Graham, 473 U.S. at 166).  Accordingly, the district court correctly determined that Burgo's right not to be subjected to excessive force by prison personnel was clearly established, as was the responsibility of supervisory prison personnel not to act with deliberate indifference to that right.  Leer, 844 F.2d 628, 633.1

13
Shimoda also contends that even if "deliberate indifference" is the applicable standard, he was not deliberately indifferent to Burgo's rights because he did not know that Kauhane was having contact with inmates at the time of the attack on Burgo, and that it was not his direct responsibility to enforce the "no contact" order that issued after the first reported assault.  Burgo contends, however, that Shimoda did know that Kauhane was in contact with inmates in violation of the order because a second assault by Kauhane on an inmate was reported while Kauhane was under the no-contact order, and Shimoda ordered an investigation into that incident.  The parties also disagree about whether Shimoda is responsible for lengthy delays in investigating Kauhane's two previous assaults on inmates and in taking disciplinary action.  Because these issues of fact must be resolved in order to determine whether Shimoda "knowingly violated the law" by failing to take steps to prevent Kauhane from repeating his physical attacks on inmates, the district court did not err in denying summary judgment.  See Hunter v. Bryant, 112 S.Ct. 534, 537;  Act Up!, slip op. at 1079.

14
AFFIRMED.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1
 Shimoda contends that the Supreme Court's recent decision in Hudson v. McMillian, 112 S.Ct. 995 (1992) requires that Burgo prove that Shimoda acted "maliciously or sadistically" rather than with "deliberate indifference" to Burgo's rights.  This decision does not affect our determination of whether Burgo had a clearly established right at the time of the alleged violation, for purposes of Shimoda's claim of qualified immunity.  See Anderson v. Creighton, 483 U.S. 635, 640 (1987) ("[I]n the light of preexisting law the unlawfulness must be apparent.");  Tribble, 860 F.2d at 324


76 So.3d 307 (2011)
SIMAN
v.
SIMAN.
No. 3D10-3347.
District Court of Appeal of Florida, Third District.
October 4, 2011.

DECISION WITHOUT PUBLISHED OPINION
Appeal dismissed.


                Case: 14-14188       Date Filed: 12/08/2015       Page: 1 of 7

                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                                        No. 14-14188

                          D.C. Docket No. 1:10-cv-21528-ASG

THARAS E. MOORE,

                                                           Petitioner - Appellant,

                                            versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                           Respondent - Appellee.

                      Appeal from the United States District Court
                          for the Southern District of Florida

                                     (December 8, 2015)

Before MARCUS and JILL PRYOR, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:

*
 Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by
designation.
                Case: 14-14188      Date Filed: 12/08/2015      Page: 2 of 7

       Tharas Moore (“Moore”), a Florida state prisoner who pleaded guilty in four

separate, consolidated cases, appeals through counsel the district court’s denial of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Upon careful review and

with the benefit of oral argument, we affirm.

                                              I.

       On May 8, 2001, Moore, having entered into a consolidated plea agreement

with the State Attorney for Miami-Dade County, Florida, pleaded guilty in the

Miami-Dade County Circuit Court (“Circuit Court”) to four informations charging

him with various criminal offenses, including robbery, burglary, aggravated

assault, possession of a firearm by a violent career criminal, and battery on a law-

enforcement officer. He was sentenced to concurrent prison terms totaling twenty

years. The judgment in each of the four cases stated:

       The defendant in Open Court was advised of his right to appeal from
       this sentence by filing notice of appeal within thirty days from this
       date with the Clerk of this Court, and the defendant’s right to the
       assistance of counsel in taking said appeal at the expense of the State
       upon showing indigence.1

DE 13-5 at 5; DE 13-8 at 5; DE 13-11 at 3; DE 13-14 at 3. Moore was

subsequently resentenced in three of his cases. Moore contends that, contrary to

this recital in the four judgments, the Circuit Court did not actually inform him of

1
 This statement was required by Florida Rule of Criminal Procedure 3.986, which prescribes the
“Forms Related to Judgment and Sentence.”

                                              2
                 Case: 14-14188       Date Filed: 12/08/2015      Page: 3 of 7

his right to appeal his sentences. 2 He asserts that it was only at one of his

resentencing hearings, on December 24, 2008, that he learned of his right to appeal

when the Circuit Court informed him that he had a right to appeal the sentence

within thirty days.

       In November 2009, Moore petitioned the Florida Third District Court of

Appeal (“Third DCA”), pursuant to Florida Rule of Appellate Procedure 9.141, for

a writ of habeas corpus granting him a belated appeal in each of the four cases.

Moore’s petition, filed under oath, stated that he was entitled to belated appeals in

the four cases because the Circuit Court failed to inform him of his right to appeal

and that such failure denied him the due process and equal protection of the law

guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States

Constitution. The Third DCA summarily denied Moore’s petition and subsequent

motion for rehearing. Moore v. State, 23 So.3d 1193, 1193 (Fla. Dist. Ct. App.

2010).

2
  In Florida, the right of a defendant convicted pursuant to a plea of guilty to appeal is
circumscribed by Florida Rule of Appellate Procedure 9.140, which, in relevant part, states:

       A defendant who pleads guilty . . . may otherwise directly appeal only
        (a) the lower tribunal’s lack of subject matter jurisdiction;
        (b) a violation of the plea agreement, if preserved by a motion to withdraw plea;
        (c) an involuntary plea, if preserved by a motion to withdraw plea;
        (d) a sentencing error, if preserved; or
        (e) as otherwise provided by law.

Fla. R. App. P. 9.140(b)(2)(A)(ii).
                                                3
                 Case: 14-14188        Date Filed: 12/08/2015         Page: 4 of 7

       On May 11, 2010, Moore petitioned the United States District Court for the

Southern District of Florida for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, claiming that both the Circuit Court’s failure to inform him of his right to

appeal his sentences and the Third DCA’s denial of his petition for belated appeals

operated to deny him due process of law. The district court denied the petition on

August 28, 2014.3 In doing so, the district court assumed Moore was not informed

of his right to appeal, but agreed with the State that the Third DCA properly denied

Moore’s petition for a belated appeal as time-barred. 4 The district court also

determined that contrary to Moore’s argument, Peguero v. United States, 526 U.S.

23 (1999), “does not establish an overarching constitutional rule that courts must

3
  This was in fact the second time the district court denied Moore’s petition. The district court
originally denied the petition because the judgments in each of Moore’s state cases indicated that
he was informed of the right to appeal. Moore appealed and we vacated and remanded, holding
that the district court could not have given meaningful review without the transcripts from
Moore’s plea colloquy and sentencing hearing. See Moore v. Sec’y Fla. Dep’t of Corr., 486 F.
App’x 810, 811–12 (11th Cir. 2012) (unpublished). We ordered the State to “produce the plea
colloquy and sentencing hearing transcripts prior to considering the [merits] of Moore’s claim.”
Id. The transcripts could not be located.
4
 The rule governing belated appeals in Florida at the time of Moore’s petition was Florida Rule
of Appellate Procedure 9.141(c)(4)(A), which provided that such a belated appeal

       shall not be filed more than 2 years after the expiration of time for filing the
       notice of appeal . . . unless it alleges under oath with a specific factual basis that
       the petitioner (i) . . . was not advised of the right to an appeal . . .; and (ii) should
       not have ascertained such facts by the exercise of reasonable diligence.

In denying Moore’s petition, the district court cited Florida Rule of Appellate Procedure
9.141(c)(5)(A), rather than 9.141(c)(4)(A). Rule 9.141(c)(5)(A) is currently in effect and
includes a four-year as well as a two-year limitation for belated appeals. Fla. R. App. P.
9.141(c)(5)(A) (“In no case shall a petition for belated appeal be filed more than 4 years after the
expiration of time for filing the notice of appeal.”). The district court correctly held that Moore
had not satisfied either the two or four year limits.
                                                  4
                Case: 14-14188        Date Filed: 12/08/2015       Page: 5 of 7

advise defendants of their right to appeal.” DE 62 at 8 n.8. 5 The district court

granted Moore a certificate of appealability (“COA”) on the following issue:

       [W]hether the State of Florida violated Moore’s due process rights by
       failing to advise him of his right to appeal his sentence at his May 8,
       2001 sentencing hearing and summarily denying his request for a
       belated appeal when the request was filed more than two years after
       the expiration of time for filing the notice of appeal and did not state
       that Moore could not have ascertained such facts by the exercise of
       reasonable diligence, and when the request was filed more than four
       years after the expiration of time for filing the notice of appeal.

DE 62 at 8.

                                               II.

       We review a district court’s denial of a 28 U.S.C. § 2254 petition de novo.

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Under 28 U.S.C.

§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996,

a federal court may grant a state prisoner a writ of habeas corpus when his federal

constitutional claim has been “adjudicated on the merits in State court” if the

adjudication of the claim:

      (1) resulted in a decision that was contrary to, or involved an
         unreasonable application of, clearly established Federal law, as
         determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
         determination of the facts in light of the evidence presented in the
         State court proceeding.

5
 We agree with the district court that Peguero v. United States, 526 U.S. 23 (1999), did not
establish a constitutional rule applicable to the factual setting presented by this case.
                                                5
              Case: 14-14188     Date Filed: 12/08/2015    Page: 6 of 7

28 U.S.C. § 2254(d).

      Although the Third DCA denied Moore’s petition for belated appeal and

motion for rehearing summarily, the Third DCA adjudicated his claim on the

merits. See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1353 (11th Cir. 2012)

(holding that a per curiam affirmance without an opinion is an adjudication on the

merits absent a statement by the state court that the decision was based solely on a

state procedural rule); see also Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013);

Harrison v. Richter, 562 U.S. 86, 99 (2011). As there was no indication that the

decision was based solely on a state procedural bar, the Third DCA’s decision is

entitled to deference. See Shelton, 691 F.3d at 1353. When a state court

summarily denies a claim, a federal court will grant habeas only if there is no

reasonable explanation for the state court’s decision. See Harrison, 562 U.S. at 98.

      In Griffin v. Illinois, the Supreme Court held that although states are not

required by the U.S. Constitution to provide the right to appellate review, once

states grant such a right, the Equal Protection and Due Process Clauses apply. 351

U.S. 12, 18–20 (1956). Florida provides a right to appeal and requires its judges,

after sentencing a defendant, to inform the defendant personally, in open court, of

the right to appeal. Fla. R. App. P. 9.140; Fla. R. Crim. P. 3.986. If a judge fails to

so inform the defendant, the defendant has two years in which to petition the court

in which the appeal would lie for a belated appeal. See Fla. R. App. P. 9.141(c)(4).

                                          6
                 Case: 14-14188        Date Filed: 12/08/2015        Page: 7 of 7

If more than two years have passed, Florida requires defendants to have exercised

reasonable diligence in attempting to ascertain whether they had the right to

appeal. Id. There is no controlling Supreme Court precedent holding that such

rules do not provide adequate relief when a defendant is not informed of his right

to appeal as required by state law. 6 Where there is no on point Supreme Court

precedent, a state court’s conclusion cannot be contrary to clearly established

Federal law. Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003). Thus,

in denying Moore’s petition, which was filed more than two years after the time for

filing a notice of appeal had run, and which did not allege that he exercised

reasonable diligence to determine whether he had the right to appeal, the Third

DCA neither acted contrary to clearly established Federal law nor applied such law

unreasonably. Accordingly, the judgment of the district court is

       AFFIRMED.

6
 That the Florida District Courts of Appeals have granted some defendants’ motions for belated
appeals based on a trial judge’s failure to inform the defendant at sentencing of his or her right to
appeal does not render the Third DCA’s decision to deny Moore’s belated appeal erroneous. See
Battles v. State, 930 So. 2d 769 (Fla. Dist. Ct. App. 2006); Byrd v. State, 916 So. 2d 926 (Fla.
Dist. Ct. App. 2005); Bowden v. Singletary, 805 So. 2d 812 (Fla. Dist. Ct. App. 1999).

                                                  7