Cody William Marble v. Attorney General of the State of Montana

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CODY WILLIAM MARBLE,
Petitioner - Appellant,
v.
ATTORNEY GENERAL OF THE STATE
OF MONTANA and MIKE FERRITER,
Director of the Montana Department of
Corrections is an appellee,
Respondents - Appellees.
No. 10-35159
D.C. No. 9:09-cv-00141-DWM-
JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 7, 2013
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Cody William Marble appeals the district court’s dismissal of his federal
habeas petition as time-barred. We agree with the district court that Marble’s
FILED
OCT 10 2013
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.

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petition was filed outside of the one-year statute of limitations period set forth in
the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. §
2244(d).
However, it appears that the record was not adequately developed in the
district court to allow a determination of whether Marble was eligible for equitable
tolling. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Indeed, at oral
argument both sides agreed that the factual basis for Marble’s claim for equitable
tolling had not been fully developed in the district court, and accordingly, had not
been considered by the district court. Accordingly, the district court’s denial of the
habeas petition is VACATED and the appeal is REMANDED for consideration of
Marble’s claim for equitable tolling.

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