holding that a petition for habeas corpus should not be 15 dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded 16 were such leave granted
How later courts described this case
- holding that a petition for habeas corpus should not be 15 dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded 16 were such leave granted
- holding “a petition for habeas corpus should not be 16 dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded 17 were such leave granted”
- holding a habeas petition should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted
- “It may be 10 | that [the petitioner’s] conclusory averments cannot be factually supported, but a petition for writ 11 | of habeas corpus should not be dismissed without leave to amend unless it appears that no 12 | tenable claim for relief can be pleaded were such leave granted.”
Written by the judges who cited it.
The opinion
PER CURIAM:
Jarvis appeals from an order dismissing his petition for a writ of habeas corpus in which he claimed that an illegally obtained confession was used against him in his state trial. The ground for the dismissal was that the petition did not state a claim for relief. The district court did not grant Jarvis leave to amend. The transcript of the state court proceeding in which the question of the legality of the confession was explored was not presented to the district court.
It may be that Jarvis' conclusory averments cannot be factually supported, but a petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. (See Pembrook v. Wilson (9th Cir. 1966) 370 F.2d 37 , 39 n. 4; Wilson v. Wilson (9th Cir. 1967) 372 F.2d 211, 212 .) The district court could not rely on the factual determinations of the state court rejecting Jarvis’ claim because the transcript of the state trial was not before it. (Selz v. State of California (9th Cir. 1970) 423 F.2d 702 ; Piche v. Rhay (9th Cir. 1970) 422 F.2d 1309 .)
The order is reversed and the cause is remanded for further proceedings consistent with the views herein expressed.