NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARK A. HARRIS, Petitioner - Appellant,

v. FRED FOULK, Warden, Respondent - Appellee. No. 12-56354 D.C. No. 2:11-cv-07519-JVS-JPR

MEMORANDUM *

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 

# FILED

JAN 27 2015 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* 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 f actual predicate of his habeas claim, we reverse and remand for further proceedings. Where a habeas petition alleges newl y 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 ine ffective assistance of counsel, “a petitioner must have discovered (or with the exerci se 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

2reason to believe that his attendance at that hearing would reveal any inaccuracies in the trial court and counsel’s represen tations regarding the length of his parole term. It was not until his second pa role suitability hearing, conducted on September 23, 2010, that Harris first became aware of the actual parole term to which he was subject. He diligently pur sued his claims once he discovered this discrepancy, and filed hi s 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 factua l 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