                                                                            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                            NOT FOR PUBLICATION                               JUN 3 2011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
