                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 07 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOEL ALCOX,                                      No. 12-57309

              Petitioner - Appellant,            D.C. No. 2:08-cv-01587-JVS-AJW

  v.
                                                 MEMORANDUM*
JEFFREY A. BEARD,

              Respondent - Appellee,

  and

PEOPLE OF THE STATE OF
CALIFORNIA, Real Party in Interest,

              Respondent.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                    Argued and Submitted November 20, 2014
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW and PAEZ, Circuit Judges, and KENNELLY, District
Judge.**

      Joel Alcox appeals the district court’s denial of his 28 U.S.C. § 2254 petition

as untimely under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. Because the district court erred in concluding that Alcox failed to exercise

due diligence in pursuing the factual predicate of his habeas claim, we reverse and

remand for further proceedings.

      Where a habeas petition alleges newly discovered evidence, the one-year

statute of limitations under AEDPA begins to run on the date on which the factual

predicate of the claims presented could have been discovered through the exercise

of due diligence. Id. § 2244(d)(1)(D); McQuiggin v. Perkins, 133 S.Ct. 1924, 1929

(2013). “Due diligence does not require the maximum feasible diligence, but it

does require reasonable diligence in the circumstances.” Ford v. Gonzalez, 683

F.3d 1230, 1235 (9th Cir. 2012) (internal quotations omitted). Furthermore, where,

as here, the petitioner alleges ineffective assistance of counsel, “a petitioner must

have discovered (or with the exercise of due diligence could have discovered) facts




       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.

                                           2
suggesting both unreasonable performance and resulting prejudice.” Hasan v.

Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) (emphasis in original).

       The district court erred in concluding that Alcox failed to exercise due

diligence sufficient to delay commencement of AEDPA’s one-year filing deadline.

As we previously stated in this case, Alcox v. Hartley, 407 F.App’x 174, 175 (9th

Cir. 2010), “in analyzing Alcox’s diligence, the district court should . . . examine[]

his activities between 1996 and 2002, when he filed his first state habeas petition.”

After conducting an evidentiary hearing on diligence, the district court incorrectly

concluded that because Alcox “did nothing more” than contact the Salvation Army

between 1996 and 1998, he had failed to act diligently. However, as we made

clear in Alcox, a petitioner’s specific circumstances, including his incarcerated

status, the ban against contacting other prisoners directly, and his lack of resources

and outside support are all factors relevant to the due diligence inquiry. Id. at 175-

76; see Souliotes v. Evans, 622 F.3d 1173, 1178 (9th Cir. 2010), vacated on other

grounds, 654 F.3d 902 (9th Cir. 2011) (“§ 2244(d)(1)(D)’s due diligence

requirement is an objective standard that considers the petitioner’s specific

situation.”).

       Alcox testified that during his incarceration, he could make only fifteen-

minute, collect phone calls at certain times, and that lockdowns placed further


                                          3
limitations on these calls. When he was able to contact the Salvation Army, he

learned that they lacked resources to help him. Given that his adoptive family

faced financial and personal difficulties at that time, he knew that he needed to

contact his biological family. Finding them was difficult, however; his original

last name was his only clue, and he had few resources available to help him in his

search. In addition to his limited access to a telephone, he had no computer access

while incarcerated, and his adoptive parents were able to visit him only once a

year.

        When he was finally able to make contact with Sharon Tissue, one of his

biological family members, in 1998, he was hesitant to ask for her help right away.

Tissue confirmed that had Alcox asked for help immediately, she would not have

given it, since she was wary of his incarcerated status. But once Tissue agreed to

help Alcox, they met numerous times—sometimes weekly—to work on his case.

Tissue ultimately secured counsel for Alcox, and, through counsel, he was able to

discover the factual predicate of his ineffective assistance of counsel claim. This

took considerable time even after counsel obtained the files of Alcox’s then-

deceased criminal defense attorney. He filed his federal habeas petition within one

year thereafter. Thus, Alcox exercised reasonable diligence in discovering the




                                          4
factual predicate of his habeas petition, and timely filed his petition.

      REVERSED and REMANDED.




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