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 underlying claim will not be considered by a federal court. See Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990). 10845 10846 MCNABB v. YATES A prior petition that has been dismissed without prejudice for failure to exhaust state remedies leaves open the possibil- ity for future litigation and has not, therefore, been adjudi- cated on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). In contrast, the dismissal of a first petition with prejudice because of a procedural default (and a failure to show cause and prejudice) forecloses the possibility that the underlying claims will be addressed by a federal court. See Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005). Such a dismissal therefore constitutes a disposition on the merits and renders a subsequent petition second or succes- sive for purposes of 28 U.S.C. § 2244(b). Id.

Similarly, dismissal of a first habeas petition for untimeli- ness presents a “permanent and incurable” bar to federal review of the underlying claims. See, e.g., Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005). We therefore hold that dis- missal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for purposes of the AEDPA, 28 U.S.C. § 2244(b).1

We deny McNabb’s application for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court.2 McNabb has not made a prima facie showing under 28 U.S.C. § 2244(b)(2) that:

(A) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review 1 But cf. Gonzales v. Crosby, 545 U.S. 524, 535-36 (2005) (a “Rule 60(b) motion [that] challenges only [a] District Court’s previous ruling on the AEDPA statute of limitations . . . is not the equivalent of a successive habeas petition”); Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009) (Rule 60(b)(6) motions in habeas petitions are reviewed on a case-by-case basis to determine whether the motion should be construed as a second or successive habeas petition). 2 McNabb’s motions for leave to file a belated brief in support of his application and for judicial notice are granted. MCNABB v. YATES 10847 by the Supreme Court, that was previously unavail- able; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exer- cise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evi- dence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitu- tional error, no reasonable factfinder would have found the petitioner guilty of the underlying offense.

No petition for rehearing or motion for reconsideration of the denial of the application to file a second or successive § 2254 petition shall be filed or entertained in this case. See 28 U.S.C. § 2244(b)(3)(E).

DENIED.

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