                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT          FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                            No. 08-14836               DECEMBER 15, 2010
                      ________________________             JOHN LEY
                                                            CLERK
                  D. C. Docket No. 05-00813-CV-VMC

RICHARD HAMILTON,


                                                          Plaintiff-Appellant,

                                 versus

SECRETARY, DOC,
FLORIDA ATTORNEY GENERAL,


                                                       Defendants-Appellees.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                          (December 15, 2010)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
       The issue in this 28 U.S.C. § 2254 capital case is whether the doctrines of

equitable estoppel and judicial estoppel operate to lift the petitioner’s claims over

the statute of limitations bar contained in 28 U.S.C. § 2244(d).1 In an earlier

opinion we remanded the case to the district court with a request that it conduct an

evidentiary hearing and answer nine questions we posed, so that we could then

decide the legal issues. See Hamilton v. Sec’y, Dep’t of Corrs., 325 Fed. Appx.

832 (2009) (unpublished).

       On remand, the district court did exactly as we had requested; after

conducting an evidentiary hearing, the court answered all of our questions, for

which we are grateful. A copy of the district court’s order is attached as Appendix

A to this opinion.

                                                I.

       In its order responding to our nine questions, the district court chronicled the

events leading up to the December 14, 2000 hearing in state court. As the district

court pointed out, petitioner Richard Hamilton’s conviction and sentence became


       1
         We granted a certificate of appealability only on the issues of equitable tolling and
equitable estoppel, but we intended it to include the related issue of judicial estoppel, so the
parties briefed and orally argued that issue as well. Hamilton v. Sec’y, Dep’t of Corrs., 325 Fed.
Appx. 832, 833 (2009) (unpublished). After the district court on remand entered its findings
answering our questions, however, the petitioner did not raise, address, or even mention the issue
of equitable tolling in his supplemental brief to us, so we will not consider it. See DeYoung v.
Schofield, 609 F.3d 1260, 1282 n.21 (11th Cir. 2010).


                                                2
final when the Supreme Court denied his petition for writ of certiorari on June 26,

1998, ending his direct appeal. The Office of Capital Collateral Regional Counsel

had stated that it would not represent Hamilton in his state post-conviction

proceedings, so the state court chose attorneys from the Attorney Registry to

represent him. During his state post-conviction proceedings, four attorneys were

appointed to represent Hamilton, one after the other.2 The first attorney was

appointed on November 18, 1998, and the last one was appointed about three

months later on February 18, 1999. That fourth and final attorney in the state court

proceedings was Charles E. Lykes, Jr. He represented Hamilton at the December

14, 2000 hearing in state court where the events that frame the issues in this appeal

took place.

       On June 14, 1999, just a couple of weeks before Hamilton’s one-year

deadline for filing a federal habeas petition, see 28 U.S.C. § 2244(d), Lykes moved

for a sixty-day extension of time to file Hamilton’s motion for post-conviction

relief in state court, and the State did not object to that extension. The state court

granted the requested extension, which gave Hamilton until August 13, 1999 to file

his motion. Lykes later sought and received two more extensions, and on



       2
         The record does not indicate and the district court could not determine why the first
three of those attorneys were relieved of the representation.

                                                 3
November 8, 1999, he finally filed a four-page motion for post-conviction relief.

      David A. Davis, the attorney who had represented Hamilton in his direct

appeal, wrote a letter to the state court judge on March 24, 2000, expressing his

concern about the motion that Lykes had filed. Davis feared that Lykes’ actions or

inaction not only might have waived issues in state court but also might have

“‘precluded [Hamilton] from raising any claims in federal court.’” Appx. A at 8.

Hamilton also wrote a letter to the state court judge complaining about Lykes.

      Five days later during a status conference Lykes asked for another sixty days

in order to file an amended motion for post-conviction relief. The State did not

object to the extension, and Lykes filed that amended motion on June 28, 2000.

Meanwhile, Hamilton wrote letters to the judge continuing to express his concerns

about Lykes’ performance, and Lykes asked the judge to schedule a status

conference so that Hamilton’s concerns could be addressed.

      On September 25, 2000, Hamilton filed a pro se “Motion to Dismiss

Incompetent/Ineffective Post Conviction Counsel and Strike Original/Amended

Post Conviction Motion and Appoint Qualified Post Conviction Counsel.” About

a month later, Lykes filed a motion asking the court to address Hamilton’s

concerns at a status conference. About a month after that, the State requested a

hearing. The state court held a hearing on December 14, 2000, and the district


                                          4
court’s order details what happened during that hearing.

       By the time that state court hearing was held Hamilton’s June 28, 1999

deadline for filing a federal habeas petition had long since passed. See 28 U.S.C. §

2244(d); see also Thompson v. Sec’y, Dep’t of Corrs., 595 F.3d 1233, 1235 (11th

Cir. 2010) (“The AEDPA mandates a one-year statute of limitations for filing a

federal habeas corpus petition.”).

                                           II.

       This is where the district court’s fact findings in response to our specific

questions come in. Those careful findings were entered after a full evidentiary

hearing on the matter, and none of them are clearly erroneous. See Anderson v.

City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512 (1985);

Carmichael v. Kellogg, Brown & Root Services, Inc., 572 F.3d 1271, 1279–80

(11th Cir. 2009); EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1285–86 (11th

Cir. 2000); United States v. Walcott, 972 F.2d 323, 325 (11th Cir. 1992) (“The

constituent elements of estoppel constitute questions of fact . . . and will be

accepted as interpreted by the district court unless its findings were clearly

erroneous.”) (quotation marks and alterations omitted). For our purposes, the

district court’s findings are the facts.

       The district court found that at the December 14, 2000 hearing in state court


                                            5
both attorneys for the State represented—one expressly and the other

implicitly—that the § 2244(d) statute of limitations deadline had not passed as of

that time. Appx. A at 21–22. The court also found, however, that both of the

attorneys representing the State, like Lykes who was representing Hamilton,

genuinely believed that the limitations period had not passed. Id. at 23 & n.8,

24–25. They were mistaken. Neither intended to mislead Lykes or the state court.

See id. at 24.

       There was conflicting testimony about whether either attorney for the State

ever represented to Hamilton or to his attorney that the State would not assert the §

2244(d) statute of limitations as a defense when the case reached federal court.

Appx. A at 22. Lykes testified that sometime before the December 14, 2000

hearing one or both of the attorneys for the State had told him that the State would

not assert the § 2244(d) limitations bar in federal court. However, both of those

attorneys testified that they had not done that. The district court resolved that

conflict in the testimony by finding that Lykes was under the mistaken impression

that either or both of the attorneys for the State had told him that when in fact

neither one had. See id. at 22–23.3

       3
        The court credited the testimony of the two attorneys for the State over that of Lykes. In
doing so, the court took into consideration: Lykes’ lack of memory about the details of the
alleged conversation; the established policy of the state attorney general’s office not to waive
any time-bar defense in federal court; the fact that none of the attorneys at the hearing informed

                                                6
       The district court also found that neither Hamilton nor Lykes relied on the

inadvertent misstatements that the attorneys for the State made at the hearing about

the § 2244(d) deadline not having passed. Id. at 25–26. The deadline had, after

all, passed eighteen months before those statements were made, so they could not

have contributed in any way to any inaction until after it was already too late. Id.

       If Lykes had known that the § 2244(d) limitations period had already run, he

might have moved to withdraw as counsel for Hamilton in the state court

proceeding.4 Id. at 25–26. The only benefit the State conceivably received from

the mistaken statements of its attorneys at the hearing is avoiding any further delay

that would have occurred if Lykes had been allowed to withdraw or had been

removed from representing Hamilton. Id. at 27. But there is no assurance that the

state court would have allowed Lykes to withdraw or would have removed him,



the state court of any agreement that the § 2244(d) time-bar would not be asserted in federal
court, even though that time-bar was repeatedly discussed at the hearing; and the fact that both
attorneys for the State had stated at the hearing that while they were waiving the timeliness issue
as a defense in the state court proceedings, there was no way to predict whether a petition filed in
federal court would be deemed timely. See id. at 22–23.
       4
         Lykes testified before the district court that if he had not moved to withdraw, he would
have filed an action in federal court seeking a declaratory judgment on the limitations issue. Id.
at 27. The district court believed that would have been a futile effort because it would have
amounted to a request for an advisory opinion. See, e.g., Nat’l Adver. Co. v. City of Miami, 402
F.3d 1335, 1339 (11th Cir. 2005). Even if it did not, there is nothing Lykes could have done
with a federal court judgment declaring that it was too late for him to file a federal habeas
petition.


                                                 7
anyway. Id. at 28.

       In fact, the district court found that that such a request by Lykes or motion

by Hamilton probably would have been denied in view of the delay that had

already occurred, and even if Lykes had been replaced with new counsel there is no

reason to believe that the state court proceeding would have ended any

differently—that it would have resulted in relief from Hamilton’s sentence or

conviction. Id. at 26–28. Regardless of who had been Hamilton’s attorney from

that point on in the state court proceedings, nothing could have been done about

the already-expired § 2244(d) limitations period. Id.; see Webster v. Moore, 199

F.3d 1256, 1259 (11th Cir. 2000) (“Under § 2244(d)(2), even ‘properly filed’

state-court petitions must be ‘pending’ in order to toll the limitations period. A

state-court petition . . . that is filed following the expiration of the limitations

period cannot toll that period because there is no period remaining to be tolled.”).

       Putting it all together, the state court found that because the misstatements

by the attorneys for the State at the December 14, 2000 hearing in state court “were

not made with the intent to deceive the parties or the state court,” Appx. A at 29,

there was no fraud on the court. Id. at 30. The attorneys did not act in bad faith,

Hamilton suffered no prejudice, and there was no miscarriage of justice. Id. at 31;

see Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002)


                                             8
(“Judicial estoppel is applied to the calculated assertion of divergent sworn

positions. The doctrine is designed to prevent parties from making a mockery of

justice by inconsistent pleadings.”) (alteration and quotation marks omitted). The

district court recognized that “[w]hen considering a party’s intent for the purpose

of judicial estoppel, we require ‘intentional contradictions, not simple error or

inadvertence.’” Id. at 29 (quoting Robinson v. Tyson Foods, Inc., 595 F.3d 1269,

1275 (11th Cir. 2010) (quoting Am. Nat’l Bank of Jacksonville v. FDIC, 710 F.2d

1528, 1536 (11th Cir.1983))). Here there were none.

                                          III.

      In light of the district court’s findings about the statements made by the State

attorneys during the December 14, 2000 hearing in state court, neither equitable

estoppel nor judicial estoppel operates to lift the § 2244(d) statute of limitations

bar. Because the misstatements of the attorneys for the State were made without

knowledge that they were false, were not made with the intent to mislead, and were

not made in bad faith, equitable estoppel does not apply. See United States v.

McCorkle, 321 F.3d 1292, 1297 (11th Cir. 2003) (holding that in order to apply

equitable estoppel against the government, affirmative misconduct must be shown,

and “[a]ffirmative misconduct requires more than governmental negligence or

inaction”). Nor does judicial estoppel. See Robinson, 595 F.3d at 1275 (“When


                                           9
considering a party’s intent for the purpose of judicial estoppel, we require

intentional contradictions, not simple error or inadvertence.”) (quotation marks

omitted); see also Burnes, 291 F.3d at 1286 (“intentional contradictions, not simple

error or inadvertence” required for judicial estoppel). There is also the fact that

Hamilton has failed to establish that he detrimentally relied on the statements,

which were made eighteen months after the deadline for filing his federal habeas

petition had already passed. See Lyng v. Payne, 476 U.S. 926, 935, 106 S.Ct.

2333, 2339 (1986) (“An essential element of any estoppel is detrimental reliance

on the adverse party’s misrepresentations . . . .”); Sw. Marine, Inc. v. Gizoni, 502

U.S. 81, 92 n.5, 112 S.Ct. 486, 494 n.5 (1991) (rejecting an equitable estoppel

argument because “the critical element of detrimental reliance does not appear”).

      The district court’s decision denying Hamilton’s petition for a writ of habeas

corpus is AFFIRMED.




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