                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 10 2013

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



                           FOR THE NINTH CIRCUIT


CODY WILLIAM MARBLE,                             No. 10-35159

              Petitioner - Appellant,            D.C. No. 9:09-cv-00141-DWM-
                                                 JCL
  v.

ATTORNEY GENERAL OF THE STATE                    MEMORANDUM*
OF MONTANA and MIKE FERRITER,
Director of the Montana Department of
Corrections is an appellee,

              Respondents - Appellees.


                   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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.
