Ronnie McNabb v. James Yates
Opinion
Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONNIE MCNABB,
Petitioner, No. 09-71089 v.
ORDER
JAMES A. YATES, Warden, Respondent. Filed August 11, 2009
Before: William C. Canby, Jr., Sidney R. Thomas and Sandra S. Ikuta, Circuit Judges.
ORDER
Petitioner Ronnie McNabb seeks authorization to file a sec- ond or successive 28 U.S.C. § 2254 habeas corpus petition in the district court. See 28 U.S.C. § 2244(b). The district court dismissed McNabb’s first section 2254 habeas corpus petition as time-barred under § 2244(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We hold that the dismissal of a habeas petition as untimely constitutes a disposition on the merits and that a further petition challeng- ing the same conviction would be “second or successive” for purposes of 28 U.S.C. § 2244(b).
A habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the merits. See Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). A dis- position is “on the merits” if the district court either considers and rejects the claims or determines that the…