NOT FOR PUBLICATION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