                                Kris Edward HELTON, Plaintiff-Appellee,

                                                     v.
         SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Defendant-Appellant.

                                              No. 00-10097.

                                     United States Court of Appeals,
                                             Eleventh Circuit.

                                              Nov. 21, 2000.

Appeal from the United States District Court for the Southern District of Florida.(No. 98-10110-CV-NCR),
Norman C. Roettger, Jr., Judge.

Before TJOFLAT, HILL and POLITZ*, Circuit Judges.

        POLITZ, Circuit Judge:

        The Florida Department of Corrections appeals the district court's grant of a writ of habeas corpus
to Kris Edward Helton. For the reasons assigned, we affirm.

                                             BACKGROUND
        In 1991, Helton was living with his fiancee, Marcella Gunderson, and her three children, Matthew,
Michael, and Marshall. On July 31, 1991, at around 6:30 P.M., Gunderson fed twenty-two month old

Marshall a small amount of dinner, consisting of chicken, rice, and strawberry yogurt. She then put Marshall
to bed at approximately 8:30 P.M. Helton arrived home at 9:30 P.M. and around 11 P.M. they retired to bed.
Around 1:30 A.M. Gunderson awoke and found Helton sitting up in bed, smoking a cigarette, with what she

described as a "worried look on his face." Helton told her that her movements had awakened him.
Gunderson got up to check on the children. Upon entering Marshall's room, she discovered he was not in his
crib. Alarmed, she called Helton and they found Marshall's body outside at the bottom of the front steps,

lying face down. The child was taken to a local hospital in an ambulance and pronounced dead upon arrival.

        An autopsy determined that the cause of death was a severe trauma to the head. The medical

examiner found pink particulate in the boy's stomach, along with fibrous white matter described as rice. A
specific time of death assessment was not made at that time.
        Helton was convicted by a jury of second-degree murder of the child and was sentenced to life

imprisonment. On direct appeal, the Florida Court of Appeal unanimously reversed, finding that the evidence



    *
    Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
was insufficient to support a circumstantial evidence conviction. That court granted a rehearing, withdrew

its reversal, and examined the case under a restated standard for circumstantial convictions, specifically: a
conviction can stand only if the evidence is inconsistent with any reasonable hypotheses of innocence.

Applying this standard, the appellate court determined that there was evidentiary contradiction to all logical

hypotheses of Helton's innocence. They then affirmed the conviction.1 In a dissenting opinion, one jurist

stated that he would reverse the conviction and award a new trial, based largely on the gastric evidence. That
jurist concluded, "There can be no doubt that this evidence might have affected the verdict rendered."2 The

Florida Supreme Court denied review of Helton's petition. The United States Supreme Court also denied his
petition for review. Helton then pursued collateral relief in state court; however, this also was denied, as was

his pro se petition for habeas corpus.

        Helton then filed the instant petition, invoking 28 U.S.C. § 2254, alleging ineffective assistance of
counsel. Helton's challenge focuses on the trial attorney's failure to investigate and employ a time of death
argument based on the gastric evidence. The state's reply to the habeas application centered mainly on its

claim that the petition was untimely.

        Following an evidentiary hearing on the gastric evidence/time of death claims, the court à quo

granted the writ, finding that trial counsel was ineffective for failing to challenge the time of death and present

the gastric evidence. As to the issue of timeliness, the district court found that equitable tolling was warranted
in this case based on: 1) the petitioner's diligent pursuit of his legal rights on appeal; 2) the misinformation

by Helton's counsel as to the expiration of the statute of limitations; 3) the inadequacy of the prison library;
and 4) the "strange history of this case."3
                                                  ANALYSIS

         In Sandvik v. United States,4 we held that § 2254 was intended to be an ordinary statute of limitations

and not a jurisdictional bar. The period of limitations, therefore, may be equitably tolled "when a movant


    1
     Helton v. State of Florida, 641 So.2d 146 (Fla.Dist.Ct.App.3d Cir.1994).
    2
     Id. at 156. The majority opinion did not discuss the gastric evidence. Instead, they noted in a
footnote that any claim Helton may have for ineffective assistance of counsel must be brought by motion
for post-conviction relief. They also noted that the record in the case at that time was "wholly
inadequate" in regards to the benefits of the stomach contents evidence. Id. at 154 n. 11.
    3
     Helton v. Singletary, 85 F.Supp.2d 1323, 1328 (S.D.Fla.2000).
    4
     177 F.3d 1269 (11th Cir.1999).
untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even

with diligence."5 We also stated that we reviewed the district court's dismissal of the motion de novo because

this was solely an issue of law.6 In Sandvik, we were faced with determining, in the first instance, whether

equitable tolling should be allowed under § 2254. We here review whether the district court properly applied

the standard for equitable tolling. This is a question of fact which is reviewed for abuse of discretion.7 We
defer to the district court's findings of fact unless clearly erroneous.8 Whether a criminal defendant has

received effective assistance of counsel is a mixed question of fact and law which we review de novo. We

review for clear error, however, the trial court's findings of the historical facts underlying the claim.9
           Equitable tolling is an extraordinary remedy which is generally applied sparingly.10 It is undisputed

that the petitioner missed the one year deadline under the AEDPA. The district court opined that it was "not
disposed to apply mechanically the limitations period when review is so glaringly warranted. Such result
would belie the meaning of 'equitable tolling'."11 We agree. Although this court has recently held that
attorney "miscalculation of the limitations period or mistake is not a basis for equitable tolling," we

previously have not been faced with a situation, such as is here presented, where a combination of several
factors results in such extraordinary circumstances.12 The facts present in this case go beyond mere attorney
miscalculation. Not only did Helton receive incorrect information as to the relevant statute of limitations, but

he was further prevented from discovering the appropriate calculation due to the found deficiencies in the



    5
     Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000) (citing Sandvik, 177 F.3d at 1271).
    6
     Id.
    7
     See United States v. Patterson, 211 F.3d 927 (5th Cir.2000); Graham-Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552 (6th Cir.2000); Santa Maria v. Pacific Bell, 202 F.3d 1170,
1175 (9th Cir.2000) ("[A] district court's decision whether a statute of limitations has been equitably
tolled is generally reviewed for an abuse of discretion, unless the facts are undisputed, in which event the
legal question is reviewed de novo."); Clark v. Runyon, 116 F.3d 275 (7th Cir.1997).
    8
     Justice v. United States, 6 F.3d 1474 (11th Cir.1993).
    9
     Mincey v. Head, 206 F.3d 1106 (11th Cir.2000).
    10
        Steed, 219 F.3d at 1300.
    11
        Helton, 85 F.Supp.2d at 1328.
    12
        Steed, 219 F.3d at 1300.
prison library system.

         As the trial judge noted, the Supreme Court has declared that equitable tolling may be allowed in
situations where the claimant has actively pursued his legal remedies.13 The district court specifically found

that this case involved a petitioner who has diligently pursued his legal remedies without delay. This is not
the case of a prisoner waiting several years to bring his petition for habeas corpus. Viewed in its totality, we

cannot say that this finding is clearly erroneous.

         Finally, we agree with the district court that the history of this case contributes to the determination
of extraordinary circumstances. This was a circumstantial evidence conviction which originally was

overturned by the Florida appellate court for insufficient evidence. On rehearing, that court chose to

withdraw its reversal and affirm the conviction, rearticulating the standard of review for circumstantial
evidence convictions. As noted above, the gastric evidence question presented to the Florida appellate court
led at least one judge to believe that the verdict may have been different had the evidence been presented to

the jury.
         We find no abuse of discretion in the district court's determination that the statute of limitations
should be equitably tolled herein. We next consider Helton's claim of ineffective assistance of counsel. In

Strickland v. Washington,14 the Supreme Court established a two-prong analysis for an ineffective assistance

of counsel claim. The petitioner must first demonstrate that counsel's performance was deficient, falling
below a constitutional minimum standard. Then, there must be a reasonable probability that, but for counsel's
errors, the result of the trial would have been different.

         Florida maintains that the district court did not give appropriate due deference to the state court

decision. This contention is based on our observations in Neelley v. Nagle15 about § 2254(d)(1) which

provides:

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment
         of a State court shall not be granted with respect to any claim that was adjudicated on the merits in
         State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary
         to, or involved an unreasonable application of, clearly established Federal law, as determined by the




    13
      See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).
    14
      466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
    15
      138 F.3d 917 (11th Cir.1998).
         Supreme Court of the United States.16

In Neelley, this court held that the proper methodology for applying § 2254(d)(1) involved a three-part

inquiry. The court first must determine whether the federal law applicable to the petitioner's claim has been

clearly established. Then, the court must determine whether the state court's adjudication of the claim was
contrary to the established federal law. Finally, if the decision is not contrary to federal law, "[t]he state court

decision must stand unless it is not debatable among reasonable jurists that the result of which the petitioner

complains is incorrect."17 We recently recognized that the "viability of [the third] aspect of Neelley is

questionable" because of the Supreme Court's subsequent holding in Williams v. Taylor.18 In Williams, the

high court rejected the Fourth Circuit's interpretation of § 2254(d)(1), which also looked to a "reasonable

jurist" standard, and found that such standards would improperly cause a federal court to use a subjective
inquiry, rather than an objective one. In light of this holding, we look only to whether the district court made

the proper objective inquiry into the reasonableness of the state court's decision.

         The first prong of the Neelley analysis is readily satisfied. The Supreme Court clearly established

the law applicable to ineffective assistance of counsel claims in Strickland v. Washington. Application of the

second prong presents a more difficult question. The state court decisions on Helton's habeas corpus petitions

were summary denials, assigning no reasons. As the district court noted, we are favored with no reasoning,
analysis, findings of fact, or legal basis for the denials of Helton's claims. We have, therefore, no basis for

determining whether the state court properly applied the Strickland analysis in denying the habeas claim.



    16
      28 U.S.C. § 2254(d)(1).
    17
      Neelley, 138 F.3d at 924-25.
    18
      McIntyre v. Williams, 216 F.3d 1254, 1257 (11th Cir.2000) (discussing Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Court in Williams found:

                 Defining an "unreasonable application" by reference to a "reasonable jurist," however, is
                 of little assistance to the courts that must apply § 2254(d)(1) and, in fact, may be
                 misleading. Stated simply, a federal habeas court making the "unreasonable application"
                 inquiry should ask whether the state court's application of clearly established federal law
                 was objectively unreasonable. The federal habeas court should not transform the inquiry
                 into a subjective one by resting its determination instead on the simple fact that at least
                 one of the Nation's jurists has applied the relevant federal law in the same manner the
                 state court did in the habeas petitioner's case. The "all reasonable jurists" standard would
                 tend to mislead federal habeas courts by focusing their attention on a subjective inquiry
                 rather than on an objective one.

         Williams, 120 S.Ct. at 1521-22.
Accordingly, we find no error in our trial court's determination that it was justified in finding and concluding

that federal law was ignored in the state level review.
         Even in the absence of that finding, if the court went on to consider this case under the final prong

of the Neelley analysis, we would examine only the objective reasonableness of the state court's decision.

Again, in light of the exhaustive review by the district court, we cannot say that it erred in concluding that
the decision by the state court was unreasonable.

         Finally, Florida asserts that the district court erred in its determination that Helton's trial counsel was

ineffective. A review of the record developed at the evidentiary hearing demonstrates that the district court

did not err in holding that trial counsel's failure to investigate and present the stomach contents evidence at
trial rose to the level of ineffective assistance of counsel.

         Helton's counsel was not an experienced defense attorney.19 The defense provided by the gastric
evidence had the potential of being persuasive proof of Helton's innocence. Counsel incorrectly believed that

advancing this theory would derogate from the other theories he was offering. At bar was a purely
circumstantial evidence conviction. The prosecution had no inculpatory physical evidence against Helton.

The gastric evidence defense could have provided Helton with exculpatory physical evidence. Defense
counsel's uninformed decision to ignore this issue at trial manifestly falls below any objective standard of
reasonableness. There was a failure herein to meet the sixth amendment minimal standard for the

performance of defense counsel. We agree with the district court that Helton has met the first prong of the

Strickland analysis.

         Helton likewise easily satisfies the second prong of this analysis. At trial, a criminal defendant need

only submit evidence sufficient to create a reasonable doubt. As the district court noted, the gastric evidence
could have provided that doubt. Counsel's failure, therefore, to even investigate, much less present the gastric

evidence, obviously prejudiced Helton's trial. Accordingly, the district court did not err in holding that Helton
received ineffective assistance of counsel at the trial stage, and it properly granted Helton's petition for a writ

of habeas corpus.

         The judgment appealed is AFFIRMED.




    19
      Helton, 85 F.Supp.2d at 1331.
