Robert J. JARVIS, Appellant, v. Louis S. NELSON, Warden, Appellee, 440 F.2d 13

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.