concurring in part and dissenting in part:

I concur in the holding that we have jurisdiction to consider the appeal, but I respectfully dissent from the majority’s remand to the district court to consider possible abuse of the writ. The majority holds that inclusion of unexhausted claims in petitioner’s third amended petition may constitute abuse, even though Farmer has never had a determination on the merits of any of his habeas claims. In my view, the district court has skillfully negotiated the hairpin turns in prevailing habeas corpus jurisprudence over the past decade in order to bring Fanner to the point where he can bring all of his claims to resolution in one petition. I would affirm the district court’s order denying Nevada’s motion to dismiss for abuse of the writ, for two reasons.

I.

First, even assuming the majority is correct in holding that there can be an abuse of the writ pursuant to Rule 9(b) of the Federal Habeas Corpus Rules when there has never been a prior adjudication on the merits, this particular case is not one in which such a finding of abuse could be made. There is no doubt Farmer’s first two petitions containing unexhausted claims were properly dismissed under Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). Pursuant to this court’s then-controlling decision in Neus-chafer v. Whitley, 860 F.2d 1470 (9th Cir. 1988), the filing of a later petition in order to raise claims that had not been exhausted at the time a first federal petition was adjudicated could not, as a matter of law, have constituted an abuse of the writ because there had been no deliberate withholding of claims. Thus, after the dismissal of the second petition in this case, Farmer could have proceeded to have only his exhausted claims decided in a new petition without forfeiting unexhausted claims.

By the time Farmer filed his third petition, that law had changed. The Supreme Court had held in McCleskey v. Zant, 499 U.S. 467 , 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991) that a petitioner who filed a second § 2254 petition raising a new claim not decided in his earlier petition had abused the writ. The petitioner would not be permitted to obtain a- hearing on the merits of the new claim unless he established “cause and prejudice.” The district court therefore correctly recognized that under McCleskey , once Farmer obtained a hearing on the merits of any of his claims, he could no longer easily return to federal court on a new petition raising claims that were not exhausted when the earlier petition was filed. This is why the district court gave Farmer six months to file a new federal petition raising all claims.

When that third amended petition still contained unexhausted claims that would require dismissal pursuant to Rose v. Lundy, the district court wisely, in my view, decided the proper course was to dismiss without prejudice and place strict time limits on the filing of a state court petition in order to allow the state courts to determine whether the unex-hausted claims were valid, invalid or, as Nevada had insisted, procedurally barred.

Both the filing of the third amended complaint and the district court’s dismissal of it without prejudice were done in accordance with prevailing law in order to satisfy the requirements of Rose v. Lundy and McCles-key v. Zant. There is no basis in this record to support the state’s assertion that the third amended complaint was filed only to vex, harass, and delay. Indeed, the Supreme Court in Sanders v. United States, 373 U.S. 1, 22-23 , 83 S.Ct. 1068, 1081 , 10 L.Ed.2d 148 (1963) encouraged the district courts to refrain from deciding petitions on the merits until all possible claims were before them. *1562 That is exactly what the district court did in this case. The remand is unnecessary.

II.

Second, the district court in my view correctly held as a matter of law that there could not be an abuse of the writ under Rule 9(b) when there has never been an adjudication of any prior claim on the merits. In reversing, the majority correctly recognizes that Rule 9(b) was promulgated to reflect principles enunciated in Sanders v. United States, supra, but then gets Sanders wrong.

The majority’s analysis depends on the premise that Sanders itself involved a case where a previous habeas petition had not been decided on the merits. See majority op., pp. 1557-58. I do not believe that premise is accurate.

Sanders involved a second petition. In his first petition, Sanders alleged that the indictment was invalid, that he was denied effective assistance of counsel, and that his guilty plea was involuntary. Sanders, 373 U.S. at 5 , 83 S.Ct. at 1071 . Sanders made insufficient factual allegations in support of his claims. Id., 83 S.Ct. at 1072 . The district court, however, did not simply deny the petition because of the absence of supporting factual allegations; it also held that the court records affirmatively refuted Sanders’ three claims for relief. Id. That was an adjudication on the merits. See id. at 16 , 83 S.Ct. at 1077 , explaining that in order for there to be a ruling on the merits for abuse purposes, the court must either refute the allegations from its own records or hold a hearing. The Court said that an “adjudication on the merits” in a prior application means that “if factual issues were raised in the prior application,” then either the application was “denied on the basis that the files and records conclusively resolved these issues,” or “an evidentiary hearing was held.” Id.

The concept of abuse of the writ is a subset of the larger realm of res judicata claim preclusion. While prior habeas determinations have less preclusive effect than ordinary judgments, they do have some pre-clusive effect. See id. at 8-11 , 83 S.Ct. at 1073 -75 (citing and discussing Salinger v. Loisel, 265 U.S. 224 , 44 S.Ct. 519 , 68 L.Ed. 989 (1924); Wong Doo v. United States, 265 U.S. 239 , 44 S.Ct. 524 , 68 L.Ed. 999 (1924); Price v. Johnston, 334 U.S. 266 , 68 S.Ct. 1049 , 92 L.Ed. 1356 (1948)). It is hornbook law that a prior judgment does not have preclusive effect unless it is a decision on the merits. See Restatement (Second) of Judge-ments §§ 13 & 20 (1982); Kremer v. Chemical Const. Corp., 456 U.S. 461 , 466 n. 6, 102 S.Ct. 1883 , 1889 n. 6, 72 L.Ed.2d 262 (1982). The Supreme Court underscored this point recently in Felker v. Turpin, - U.S.-, -, 116 S.Ct. 2333, 2340 , 135 L.Ed.2d 827 (1996), where it stated that “restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the writ.’ ” The majority decision is thus contrary to basic claim preclusion principles.

The majority’s reliance on Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir.1989), and Sawyer v. Whitley, 505 U.S. 333 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992), is not convincing. In Hamilton we did not, as the majority opinion states, “recognize[] that the absence of a prior merits determination wasn’t dispositive of the state’s alternative ‘abusive petition’ argument.” Majority op. p. 1558. Instead, we decided the abuse of the writ argument on the merits because neither party raised the question whether there can be an abuse absent a prior adjudication on the merits. 882 F.2d at 1473 . We did not deal with the issue presented here. The language quoted from Sawyer , on page 1560 of the majority’s opinion, is not persuasive because Sawyer concerned the “miscarriage of justice” exception to the bar against consideration of successive claims, and not whether a successive claim may constitute an abuse of the writ. Sawyer, 505 U.S. at 339-40 , 112 S.Ct. at 2518-19 .

Apart from Sanders , neither the majority opinion nor the state cites any case in which it is even suggested that Rifle 9(b) authorizes finding an abuse when there has been no prior decision on the merits. The principles enunciated in Sanders were drawn from an extensive discussion of prior cases, all of which considered .an earlier decision on the merits to be a prerequisite to consideration of any government claim of abuse in a successive petition. In Wong Doo v. United States, 265 U.S. 239, 239-40 , 44 S.Ct. 524, *1563 525 , 68 L.Ed. 999 (1924), the petitioner raised two grounds for relief in his first federal habeas petition, but withheld any proof on the second ground and lost on the merits. Later, he filed a second petition, relying exclusively on the second ground alleged in the first petition. Id. at 240 , 44 S.Ct. at 525. The Supreme Court observed that petitioner had not offered any “reason for not presenting the proof at the outset,” and held that “[t]o reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus.” Id. at 241, 44 S.Ct. at 525.

Price v. Johnston, 334 U.S. 266 , 68 S.Ct. 1049 , 92 L.Ed. 1356 (1948), also involved a prior adjudication on the merits. In Price , the petitioner raised a new claim for relief in his fourth successive federal habeas petition. Id. at 286, 288-89 , 68 S.Ct. at 1060, 1061-62 . The Supreme Court remanded for a determination of whether the petitioner abused the writ by failing to raise this new claim in his earlier petitions, two of which had been denied on the merits. Id. at 290-94 , 68 S.Ct. at 1062-1064 .

In addition to Wong Doo and Price , the opinion in Sanders drew heavily from Salinger v. Loisel 265 U.S. 224 , 44 S.Ct. 519 , 68 L.Ed. 989 (1924), which also concerned successive federal habeas petitions. See Sanders, 373 U.S. at 8-9 , 83 S.Ct. at 1073-74 . Sanders noted that in Salinger , “[t]he petitioner’s successive applications were properly denied because he sought to retry a claim previously fully considered and decided against him.” Id. at 9, 83 S.Ct. at 1074 . The Salinger Court observed that

265 U.S. at 231-32, 44 S.Ct. at 522 (quoting Ex parte Cuddy, 40 F. 62, 66 (1889)). Clearly, Salinger , like Wong Doo and Price , required a prior habeas adjudication on the merits.

Our overall concern should be with making habeas corpus procedures more efficient, orderly and understandable. The Supreme Court and Congress have insisted that all habeas claims be consolidated insofar as practicable and that they be promptly resolved. The latter goal can never be achieved in this case. That is beyond our control. What is within our control is to let the district court proceed to adjudicate a consolidated petition. The majority refuses to do this and instead issues an open invitation to respondents in habeas cases to file more motions and to all parties to file more appeals. Let’s stop making more work for the courts and doing less justice for litigants in habeas cases.

Because there is no factual basis to suggest the third amended complaint was filed for vexatious purposes, and for the independent reason that, as a matter of law, I believe the district court correctly recognized there can be no abuse under Rule 9(b) unless there has been a prior adjudication on the merits, I respectfully dissent from the order remanding for a determination of whether there has been an abuse of the writ.