Marble v. State, 2015 MT 242

Background

In 2002 Cody Marble was convicted by a jury of sexual intercourse without consent based on testimony from then-13-year-old Robert Thomas and other Pod C inmates; Marble has consistently asserted innocence.
In late 2009–2010 Thomas recanted in multiple interviews and produced two unsworn recantation letters (one handwritten, one typed and signed); those recantations were provided to the Montana Innocence Project.
Marble filed a PCR petition under § 46-21-102(2), MCA, in December 2010, within one year of discovery of Thomas’s recantations; the District Court took testimony (including Thomas’s later sworn retraction of his recantations) and denied relief in 2013.
The District Court based its denial on Justice McKinnon’s concurring opinion in State v. Beach (Beach II), requiring a petitioner to "affirmatively and unquestionably establish" innocence; Marble appealed.
The Montana Supreme Court held the District Court erred in applying the Beach II concurrence and repudiated the "affirmatively and unquestionably" standard as too rigid for non-DNA/new types of evidence (e.g., recantations).
The Court mandated that district courts apply the statutory test in § 46-21-102(2), MCA — i.e., whether the newly discovered evidence, if proved and viewed in light of the whole record, would establish the petitioner did not commit the offense — and remanded for reconsideration.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the District Court erred by relying on Beach II concurrence standard	Marble: District Court should apply Clark/Crosby framework and treat PCR under §46-21-102(2) using Clark factors	State: Beach II concurrence properly requires a higher, near-conclusive showing for PCR petitions based on newly discovered evidence	Court: District Court erred; Beach II ¶131 standard is too rigid and inapplicable as a universal PCR test
Proper standard for timely PCR claims based on newly discovered evidence	Marble: Apply Clark five‑part new‑trial test (as extended to PCR in Crosby)	State: PCR statute demands a stricter showing than Clark factor five; PCR petitioner presumed guilty so standard should be higher	Court: Apply the statutory test in §46‑21‑102(2) (new evidence, if proved and viewed with whole record, would establish petitioner did not engage in charged conduct); first four Clark factors may still guide threshold inquiries
Whether Clark’s fifth factor (reasonable probability of different outcome on retrial) governs PCR petitions	Marble: Crosby/Clark appropriate for PCR	State: Clark factor five is inconsistent with §46‑21‑102(2) and presumption after final conviction	Court: Overrules prior cases to extent they applied Clark factor five to PCR (Crosby, DuBray, Tyler); Clark factors 1–4 may be used as guidance only
Applicability of Schlup/Herrera framework for actual-innocence claims	Marble: (not alleging constitutional error)	State/Dissent: Schlup applies where constitutional error alleged; Beach II treated Schlup/Herrera as relevant	Court: Schlup applies only where petitioner alleges a constitutional error at trial; not applicable here because Marble did not allege constitutional trial error

Key Cases Cited

State v. Beach, 353 Mont. 411, 220 P.3d 667 (2009) (Beach I) (addresses review of newly discovered evidence and need to consider trial record along with new evidence)
State v. Beach, 370 Mont. 163, 302 P.3d 47 (2013) (Beach II) (concurring opinion articulated a stringent standard for substantive actual-innocence PCR claims)
State v. Clark, 330 Mont. 8, 125 P.3d 1099 (2005) (announced five-part test for new trial motions based on newly discovered evidence)
Crosby v. State, 332 Mont. 460, 139 P.3d 832 (2006) (applied Clark test to PCR petitions based on newly discovered evidence)
DuBray v. State, 342 Mont. 520, 182 P.3d 753 (2008) (applied Clark/Crosby principles)
State v. Tyler, 349 Mont. 461, 204 P.3d 685 (2009) (applied Clark/Crosby principles)
Schlup v. Delo, 513 U.S. 298 (1995) (federal standard for "gateway" actual-innocence procedural claims requiring showing that, in light of new evidence, no reasonable juror would convict)
Herrera v. Collins, 506 U.S. 390 (1993) (discusses substantive freestanding actual-innocence claims requiring extraordinary proof)
State v. Pope, 318 Mont. 383, 80 P.3d 1232 (2003) (applied Schlup/Herrera principles in Montana postconviction context)