Opinion · Court of Appeals for the Ninth Circuit

Robert J. Jarvis v. Louis S. Nelson, Warden

440 F.2d 13

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1971-04-08
Topic
general

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 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 | habeas 10 petition should not be dismissed without leave to amend unless it appears that no tenable claim for 11 relief can be pleaded were such leave granted | petition for habeas 9 ||corpus may be dismissed without leave to amend if “it appears that no tenable claim for 10 || relief can be pleaded were such leave granted.’’ | “[A] petition for habeas corpus should not be dismissed without leave to amend unless it 4 appears that no tenable claim for relief can be pleaded were such leave granted.” | “[A] petition for habeas corpus should 23 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted.” | “[A] petition for habeas corpus should not be dismissed without leave 24 to amend unless it appears that no tenable claim for relief can be pleaded were 25 such leave granted.” | “[A] petition for 14 habeas corpus should not be dismissed without leave to amend unless it appears that no tenable 15 claim for relief can be pleaded were such leave granted.” | “[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.” | “[A] 2 petition for habeas corpus should not be dismissed without leave to amend unless it appears that 3 no tenable claim for relief can be pleaded were such leave granted.” | a petition for writ of 17 habeas corpus should not be dismissed without leave to amend unless it appears that no tenable 18 claim for relief can be pleaded were such leave granted | “[A] petition for habeas corpus should not 27 1 || be dismissed without leave to amend unless it appears that no tenable claim for relief can be 2 || pleaded were such leave granted.” | “It may be that [the petitioner’s] conclusory averments cannot be factually supported, 19 but a petition for writ of habeas corpus should not be dismissed without leave to amend unless it 20 appears that no tenable claim for relief can be pleaded were such leave granted.” | “It may be that [the petitioner's] conclusory averments cannot be 4 factually supported, but a petition for writ of habeas corpus should not be 5 dismissed without leave to amend unless it appears that no tenable claim for 6 relief can be pleaded were such leave granted.” | “It may be that [the petitioner’s] conclusory 20 averments cannot be factually supported, but a petition for writ of habeas corpus should not be 21 dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded 22 were such leave granted.”

Citator

Cited by
121 opinions
JARVIS v. NELSON,440 F.2d 13(9th Cir. 1971)
Robert J. JARVIS, Appellant, v. Louis S. NELSON, Warden, Appellee.
No. 26440.
United States Court of Appeals, Ninth Circuit.
April 8, 1971.
Page 14
Robert J. Jarvis, in pro. per.

Gloria F. DeHart, John T. Murphy, Deputy Attys. Gen., Thomas C. Lynch, Atty. Gen., San Francisco, Cal., for appellee.
Before CHAMBERS, HAMLEY and HUFSTEDLER, Circuit Judges.
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. (SeePembrook 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.
CHAMBERS, Circuit Judge (concurring):
I concur in the result. That is, I would give the petitioner an opportunity to amend his petition. A more detailed recitation of the claim might or might not show that there was a necessity to get the transcript of evidence over from the state court. Here the majority seems to say that the district court must send for the transcript.

We simply get ahead of ourselves here if we order more than leave to amend.