Unpublished Disposition, 940 F.2d 668 (9th Cir. 1991)

MEMORANDUM^** 

Petitioner-appellant Paul Julian Maney appeals the district court's summary dismissal of his habeas corpus petition. He contends in part that the court's finding that his petition failed to state a claim was inconsistent with its later issuance of a certificate of probable cause for appeal. We agree and reverse the district court's summary dismissal.

Maney is an Oregon state prisoner currently serving a life sentence, with a requirement that he serve a minimum term of 20 years before parole eligibility. In July 1990, after exhausting his state court remedies, Maney filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Maney's petition for writ of habeas corpus contained four claims for relief: 1) that he is being imprisoned illegally; 2) that he is being unconstitutionally denied "good time" credits; 3) that he is being denied equal protection of law because other prisoners similarly situated are receiving "good time" credits; and 4) that the prison's administrative rules governing "good time" credits conflict with state law.

The magistrate issued an order for the respondent to show cause why the writ should not be granted. However, before a response was filed, the district court summarily dismissed Maney's petition for failure to state a claim. Maney moved for reconsideration requesting an opportunity to amend his petition, which was denied without comment. Maney filed a timely notice of appeal and the district court issued a certificate of probable cause.

We review the district court's decision to deny a petition for habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

On appeal, Maney contends that the district court wrongfully denied his habeas petition on three grounds, that 1) once the magistrate ordered the respondent to show cause why a writ of habeas corpus should not issue, the district judge was precluded, as a matter of law, from ordering that the petition be dismissed; 2) the district court's issuance of a certificate of probable cause for an appeal contradicts its summary dismissal of his petition and requires the district court to consider the merits of the petition; and 3) the district court should not have summarily dismissed his petition without first giving him notice and leave to amend. Because we find that the district court's issuance of a certificate of probable cause was inherently contradictory, we do not reach his other contentions. This court has recently adopted the reasoning of the Second Circuit and held that "summary dismissal followed by the issuance of a certificate of probable cause is 'intrinsically contradictory' and warrants reversal." Hendricks v. Vasquez, 908 F.2d 490, 492 (9th Cir. 1990) (quoting Dory v. Commissioner of Correction of State of New York, 865 F.2d 44, 45-46 (2d Cir. 1989)).

Accordingly, we REVERSE the district court's order dismissing Maney's petition and REMAND this case to the district court.

REVERSED and REMANDED.