                                                                            [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                             FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                         ELEVENTH CIRCUIT
                                                                             JULY 31, 2001
                                                                          THOMAS K. KAHN
                                         No. 00-10097                          CLERK


                           D.C. Docket No. 99-10110-CV-NCR


KRIS EDWARD HELTON,

                                                                            Plaintiff-Appellee,

                                      versus

SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,

                                                                        Defendant-Appellant.



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

                                        (July 31, 2001)

                       ON PETITION FOR REHEARING AND
                      SUGGESTION OF REHEARING EN BANC

Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
___________________________________
*Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
PER CURIAM:

      Our previous opinion in this case, published at 233 F.3d 1322 (11th Cir.

2000), is vacated. In its place, on petition for rehearing, we substitute this revised

opinion. No member of the Court having requested a poll, we deny the suggestion

for rehearing en banc. See Fed. R. App. P. 35; 11th Cir. R. 35-5.



                                           I.

      On March 17, 1992, Kris Edward Helton was convicted of second-degree

murder by a six-member Monroe County, Florida jury and was sentenced to life

imprisonment. On direct appeal, the District Court of Appeal of Florida, Third

District, unanimously reversed, finding that the evidence was insufficient to

support a conviction. The District Court of Appeal then granted rehearing,

withdrew its reversal, and affirmed the conviction. Helton v. Florida, 641 So. 2d

146 (Fla. Dist. Ct. App. 1994). The Florida Supreme Court declined Helton’s

petition for certiorari, Helton v. Florida, 651 So. 2d 1194 (Fla. 1995), as did the

United States Supreme Court, Helton v. Florida, 516 U.S. 834, 116 S. Ct. 111, 133

L. Ed. 2d 63 (1995).

      Helton’s subsequent requests for collateral relief in the state courts were

denied, leading Helton to file the instant petition for federal habeas corpus relief


                                           2
pursuant to 28 U.S.C. § 2254. In his petition, Helton alleges ineffective assistance

of counsel based on his trial attorney’s failure to investigate and employ a time of

death argument at trial. The State’s reply avers that Helton’s petition was untimely

filed, and is therefore procedurally barred under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. §§ 2244(d)(1)(A) and

(d)(2). Helton concedes that his petition was untimely under the AEDPA but

argues that the statute of limitations should be equitably tolled.

      The district court held initially that equitable tolling of the AEDPA’s statute

of limitations was warranted in this case based on: (1) Helton’s diligent pursuit of

his legal rights on appeal; (2) misinformation provided by Helton’s counsel

regarding the expiration of the applicable statute of limitations; and (3) the

“strange history of this case.” Helton v. Singletary, 85 F. Supp. 2d 1323, 1327-28

(S.D. Fla. 2000). Following an evidentiary hearing, the district court granted the

writ upon finding that trial counsel was ineffective for failing to challenge the

prosecution’s theory as to the victim’s time of death. For the reasons stated below,

we reverse.

                                          II.

      We review the district court’s application of equitable tolling de novo, as the

question is “solely one of law.” Sandvik v. United States, 177 F.3d 1269, 1271


                                           3
(11th Cir. 1999).

      The AEDPA grants a criminal defendant one year from the conclusion of his

direct appeal, minus time spent litigating collateral post-conviction claims, to bring

a habeas corpus petition. See 28 U.S.C. §§ 2244(d)(1)(A) and (d)(2). Helton’s

direct appeal concluded with the United States Supreme Court’s denial of certiorari

on October 2, 1995. Since that date was prior to the AEDPA’s enactment, the one

year statutory period did not begin to run until the AEDPA became effective on

April 24, 1996. See Wilcox v. Fla. Dep’t of Corrs., 158 F.3d 1209, 1211 (11th Cir.

1998). Helton filed his section 2254 petition on December 9, 1998. Factoring out

the time Helton spent pursuing post conviction relief in the state courts, 412 days

elapsed between April 24, 1996 and December 9, 1998.

      Helton concedes that his petition was untimely filed, but argues that the one

year statute of limitations should be equitably tolled. Equitable tolling can be

applied to prevent the application of the AEDPA’s statutory deadline when

“extraordinary circumstances” have worked to prevent an otherwise diligent

petitioner from timely filing his petition. Sandvik, 177 F.3d at 1271. The question

presented, then, is whether the circumstances advanced by Helton were so

“extraordinary” as to excuse his untimely filing.

                                         A.


                                          4
       Helton first argues that equitable tolling is warranted because his collateral

counsel misadvised him as to when the one year limitations period began to run.

On December 18, 1997, Helton received a letter from counsel stating:

       You have also indicated to me that you do not desire to proceed to the
       United States Supreme Court. Rather, you will turn your efforts to
       preparing a habeas corpus to be filed in the United States District
       Court. I agree that this is your last best hope in this matter. As I
       indicated to you, there are certain deadlines for filing a federal habeas
       corpus petition. I believe that you should file within one year of the
       opinion from the Court of Appeals. Thus, you must file your petition
       on or before December 9, 1998. The existence of a filing deadline is a
       matter is [sic] dispute amongst lawyers. There clearly would be a one
       year deadline under § 2255 which applies to federal sentences. There
       is a body of thought that the same deadline applies to state prisoners.
       I recommend that you assume there is a similar one-year limitation.
       Additionally, you need to be aware of the other provisions of the
       habeas corpus act. As we discussed, I would be willing to represent
       you in the federal habeas corpus proceeding. . . .”

Helton avers that because he filed his section 2254 petition before what he believed

was the deadline (based upon his attorney’s erroneous advice), his good faith effort

justifies equitable tolling.

       We held in Steed v. Head, 219 F.3d 1298 (11th Cir. 2000), that “[a]n

attorney’s miscalculation of the limitations period or mistake is not a basis for

equitable tolling. . . . Any miscalculation or misinterpretation by Steed’s attorney

in interpreting the plain language of the statute does not constitute an extraordinary




                                           5
circumstance sufficient to warrant equitable tolling.” Id. at 1300.1 See

also Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that

counsel’s confusion about AEDPA’s statute of limitations does not justify

equitable tolling); Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000)

(same); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (holding defense

counsel’s alleged mistake in calculating the limitations period for filing § 2254

petition did not equitably toll AEDPA’s one-year statute of limitations).

Moreover, Helton cannot establish his own due diligence in ascertaining the

applicable limitations period. While communicating an incorrect belief that

Helton’s section 2254 petition was due on or before December 9, 1998, counsel

also put Helton on notice of the need to check the federal habeas provisions

himself. Having failed to do so, Helton cannot now claim “extraordinary

circumstances” to justify equitable tolling of AEDPA’s statute of limitations.

                                                B.

       Helton next argues that he did, in fact, attempt to exercise due diligence in

ascertaining the applicable statute of limitations governing his section 2254

petition, but was prevented from obtaining accurate information due to deficiencies

       1
         The Steed court rejected the petitioner’s argument that the statute of limitations should
be equitably tolled because the calculation of the limitations period turned on the interpretation
of a novel legal issue requiring Steed’s counsel to interpret 28 U.S.C. § 2244(d)(2) in the
absence of clear law. Id.

                                                 6
in the prison library where he was being held. After the State asserted that

Helton’s section 2254 petition should be denied as untimely, Helton filed a reply

and a sworn declaration detailing the reasons for his late filing. He averred that he

was incarcerated at DeSoto Correctional Institution in Arcadia, Florida at the time

he received inaccurate advice from counsel in December 1997, and that he

remained incarcerated there through July 1998. Regarding the inadequacy of the

prison library, Helton alleged only:

             During all times, the inmate law library at the DeSoto
      Correctional Institution did not have the Amendments to the Federal
      Habeas Corpus Statutes which created a one-year statute of limitations
      for Federal habeas corpus by State prisoners. Therefore, I did not
      have the means to learn that there might be a question about when the
      one-year clock started to run. Since I had a two-year statute of
      limitations to file my State motion to vacate under Florida Rule of
      Criminal Procedure 3.850 and since I had to exhaust my State habeas
      remedies before I filed a Federal Habeas Petition, it seemed
      reasonable to me that the clock for Federal Habeas would not be
      running during the time allotted to prepare my State habeas which was
      a prerequisite to my Federal remedy.

Helton did not testify during the district court evidentiary hearing, and thus his

declaration is the only evidence of the deficiencies in the inmate law library at

DeSoto Correctional Institution.

      Helton’s assertion that he “did not have the means to learn that there might

be a question about when the one year clock started to run” is belied by his

admission that counsel put him on notice about confusion in that area of the law.

                                          7
Furthermore, Helton’s declaration lacks the necessary specificity to show when he

found out about the library’s alleged deficiency and what – if anything – he did to

remedy the defect. For example, Helton never asserts that he asked for the

amendments to the federal habeas corpus statutes, or that he was even aware the

library did not have these materials at the time he filed his section 2254 petition.

Helton fails to state any independent efforts he made to determine when the

relevant limitations period began to run, let alone that the DeSoto Correctional

Institution somehow thwarted his efforts. Thus, the record evidence is insufficient

to support a connection between Helton’s untimely filing and any alleged

inadequacies in the prison library. Cf. Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998) (“Mr. Miller has provided no specificity regarding the alleged lack of access

and the steps he took to diligently pursue his federal claims. . . . It is not enough to

say that the Minnesota facility lacked all relevant statutes and case law or that the

procedure to request specific materials was inadequate.”).

                                           C.

      Finally, we address the district court’s reliance upon “the strange history of

this case” to justify the application of the equitable tolling doctrine to Helton’s

untimely section 2254 petition. The district court erroneously held that the merits

of the case, “from the dubious weight of evidence, to the circumstantial conviction,


                                           8
to the flip-flopping appellate record – contribute[d] to the overall extraordinariness

of the circumstances.” Helton v. Singletary, 85 F. Supp. 2d 1323, 1328 (S.D. Fla.

1999). The “extraordinary circumstances” standard applied in this circuit focuses

on the circumstances surrounding the late filing of the habeas petition, rather than

the circumstances surrounding the underlying conviction. See Steed, 219 F.3d at

1300; Sandvik, 177 F.3d at 1270-72. The circumstantial nature of the case against

Helton does not relate to the circumstances, if any, justifying his failure to timely

file his section 2254 petition. The district court erred, therefore, in focusing upon

the merits of the case to justify equitable tolling.2

                                                D.

       In sum, the district court erred in applying the doctrine of equitable tolling to

excuse the untimely filing of Helton’s section 2254 petition. Because Helton’s

petition is procedurally barred by the AEDPA’s one year statute of limitations, we

need not consider whether his trial counsel was ineffective.




       2
         Consistent with this focus on the merits of Helton’s underlying criminal case, Helton
argued extensively in his brief on appeal that his “actual innocence” of the crime justifies
consideration of the untimely petition. This circuit has yet to decide whether there is an “actual
innocence” exception to AEDPA’s one year statute of limitations. See Wyzykowski v. Dep’t of
Corrs., 226 F.3d 1213, 1219 (11th Cir. 2000). We need not decide the issue here, however,
because the “circumstantial” nature of the case against Helton is not sufficient to support a claim
of actual innocence.

                                                 9
                                III.

For the foregoing reasons, the judgment of the district court is REVERSED.

SO ORDERED.




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