FILED
NOT FOR PUBLICATION MAY 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CODY WILLIAM MARBLE, No. 14-35143
Petitioner - Appellant, D.C. No. 9:09-cv-00141-DWM
v.
MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF MONTANA; MIKE
BATISTA, Director, Department of
Corrections,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Submitted May 4, 2015**
Seattle, Washington
Before: KLEINFELD, GOULD, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cody Marble, a Montana state prisoner, appeals the district court’s dismissal
of his 28 U.S.C. § 2254 habeas corpus petition as time barred by the 1-year statute
of limitations under the Antiterrorism and Effective Death Penalty Act. We affirm.
1. We previously affirmed the decision of the district court that Marble’s
state habeas petition was not “properly filed” and therefore did not toll the 1-year
limitations period. See Marble v. Attorney Gen. of Mont., 542 F. App’x 559, 559
(9th Cir. 2013) (citing 28 U.S.C. § 2244(d)). We remanded for consideration only
of equitable tolling. Id. The district court’s prior decision on statutory tolling has
become the law of the case and must be followed in subsequent proceedings in this
case. See Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993).
2. Turning to the issue of equitable tolling, Marble contends that he was
affirmatively misled by the Montana Supreme Court and thus should receive
equitable tolling for his untimely federal habeas petition. We disagree. To
establish that he was affirmatively misled, Marble must point to affirmative
inaccuracies in statements made to him by the Montana Supreme Court, not merely
to his “misunderstanding of accurate information.” See Ford v. Pliler, 590 F.3d
782, 788–89 (9th Cir. 2009); see also Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir.
2013); United States v. Buckles, 647 F.3d 883, 892 (9th Cir. 2011). Marble did not
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show any affirmative misstatements made by the Montana Supreme Court, and was
not entitled to equitable tolling.
AFFIRMED.
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