FILED
NOT FOR PUBLICATION JUN 3 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TYRANT WALKER, No. 07-55826
Petitioner - Appellant, D.C. No. CV-07-02834-ABC
v.
MEMORANDUM *
ROBERT AMBROSELLI,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
California state prisoner Tyrant Walker appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
under 28 U.S.C. § 2253, and we vacate and remand to the district court.
Walker contends that the district court erred by summarily dismissing his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pro se habeas petition as unexhausted, and because his conclusory allegations did
not warrant habeas relief. The record indicates that Walker fairly presented his
ineffective assistance of counsel claims as federal constitutional issues by
referencing the federal constitution and citing to federal case law in his habeas
petition before the California Supreme Court. See Insyxiengmay v. Morgan, 403
F.3d 657, 668 (9th Cir. 2005). Accordingly, Walker did exhaust his claims.
The district court erred by summarily dismissing Walker’s petition without
granting him leave to amend. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971)
(“[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.”). Accordingly, we vacate and remand to the district court with
instructions to allow Walker to amend his petition.
Walker’s motion for judicial notice is granted. See Smith v. Duncan, 297
F.3d 809, 815 (9th Cir. 2002) (judicial notice taken of relevant state court
documents with a direct relationship to appeal).
VACATED and REMANDED.
2 07-55826