                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 27 2015

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

MARK A. HARRIS,                                  No. 12-56354

              Petitioner - Appellant,            D.C. No. 2:11-cv-07519-JVS-JPR

  v.
                                                 MEMORANDUM*
FRED FOULK, Warden,

              Respondent - Appellee.


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

                      Argued and Submitted January 6, 2015
                              Pasadena, California

Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.

       Mark A. Harris 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 erroneously concluded that Harris failed

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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 quotation marks 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 suggesting both unreasonable performance and resulting prejudice.” Hasan

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

      Harris exercised reasonable diligence under the circumstances he faced.

Harris was misinformed by both the trial court and his counsel that the length of

any parole term would be five years when, in fact, he was subject to a lifetime

parole term. Harris had no reason to doubt the correctness of those representations,

or to conduct an independent investigation to determine their validity. Similarly, at

the time of his first parole suitability hearing on October 6, 2005, Harris had no


                                           2
reason to believe that his attendance at that hearing would reveal any inaccuracies

in the trial court and counsel’s representations regarding the length of his parole

term. It was not until his second parole suitability hearing, conducted on

September 23, 2010, that Harris first became aware of the actual parole term to

which he was subject. He diligently pursued his claims once he discovered this

discrepancy, and filed his federal habeas petition within four months after

discovering his actual term of parole, on January 13, 2011. Thus, Harris exercised

reasonable diligence in discovering the factual predicate of his habeas petition, and

timely filed his petition.1

       REVERSED and REMANDED.




       1
         Harris’s motion for judicial notice of certain newspaper articles and
statistics is GRANTED.

                                          3
