What is the test for dismissing an ex post facto petition for habeas corpus?

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. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). In view of the allegations of the petition and the pendency of the Gilman class action, amendment of the petition with respect to the ex post facto claim would be futile and unproductive.

Accordingly, it will be recommended that the ex post facto claim be dismissed without leave to amend.

III. Failure to State a Cognizable Double Jeopardy Claim