                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TONY GOODRUM,                         No. 13-55010
      Petitioner-Appellant,
                                        D.C. No.
             v.                  3:11-cv-02262-IEG-JMA

TIMOTHY E. BUSBY,
Warden,                                   OPINION
     Respondent-Appellee.


      Appeal from the United States District Court
         for the Southern District of California
   Irma E. Gonzalez, Senior District Judge, Presiding

        Argued and Submitted January 5, 2016
                Pasadena, California

                     Filed June 9, 2016

      Before: Milan D. Smith, Jr., Paul J. Watford,
       and Michelle T. Friedland, Circuit Judges.

                  Opinion by Judge Watford
2                      GOODRUM V. BUSBY

                           SUMMARY*


                          Habeas Corpus

    Reversing the district court’s dismissal of a habeas corpus
petition, the panel held that the petition was not “second or
successive,” and the petitioner was not required to meet the
standard for obtaining relief under 28 U.S.C. § 2244(b).

    The panel held that, just as a new petition filed in the
district court while a first petition remains pending is not
second or successive, a new petition filed in the court of
appeals while a first petition remains pending also is not a
second or successive petition subject to the stringent standard
set forth in § 2244(b).


                            COUNSEL

Tony Faryar Farmani (argued), Farmani, APLC, San Diego,
California, for Petitioner-Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney
General; Kamala D. Harris, Attorney General of California;
Gerald A. Engler, Chief Assistant Attorney General; Office
of the Attorney General, San Diego, California, for
Respondent-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    GOODRUM V. BUSBY                         3

                         OPINION

WATFORD, Circuit Judge:

    Tony Goodrum is a California state prisoner serving a 21-
year sentence for voluntary manslaughter. The district court
denied his petition for a writ of habeas corpus under 28
U.S.C. § 2254. The court held that Goodrum’s petition
constituted a “second or successive” petition under 28 U.S.C.
§ 2244(b), and that he failed to meet that statute’s stringent
standard for obtaining relief. Goodrum argues that he should
not have been required to meet § 2244(b)’s stringent standard
because his petition is not, in fact, “second or successive.”
We agree with Goodrum.

                               I

    Because the facts underlying Goodrum’s conviction are
not directly relevant to this appeal, a brief summary will
suffice. The State charged Goodrum with murder after he
shot and killed an acquaintance of his, Dwayne Stamps,
during a heated argument in the garage of Goodrum’s home.
At trial, Goodrum testified that he shot Stamps in self-defense
when Stamps charged at him armed with a metal pipe. The
key contested issue at trial was whether Stamps actually had
a metal pipe in his hands at the time Goodrum shot him.
Police officers found a metal pipe under Stamps’ body at the
crime scene, but investigators recovered only a partial print
from the pipe that could not be matched to anyone present in
the garage. The prosecution’s case rested to a significant
extent on testimony from four individuals who saw all or part
of the encounter between Goodrum and Stamps. Each of
them testified that they did not see Stamps with a metal pipe
in his hands. The jury convicted Goodrum of voluntary
4                   GOODRUM V. BUSBY

manslaughter, most likely on the theory that he acted in self-
defense but that his belief in the need for use of deadly force
was objectively unreasonable.

     Following his conviction, Goodrum unsuccessfully
pursued a direct appeal in the California appellate courts
challenging mainly the jury instructions given at trial.
Goodrum then filed a series of habeas corpus petitions in state
court that asserted, as relevant here, claims of police and
prosecutorial misconduct and ineffective assistance of
counsel. Those claims were predicated on allegations that
officers had mishandled the metal pipe found at the crime
scene (thereby destroying potentially recoverable prints); and
on an affidavit from Howard Herring, one of the four
witnesses mentioned above, who asserted that Stamps had in
fact been armed with a metal pipe but that the police and
prosecutor had coerced him into providing false testimony at
trial by threatening him with criminal charges if he refused to
cooperate with them. Goodrum claimed that he received
ineffective assistance of counsel because his trial lawyer
failed to investigate and expose this misconduct.

    The state trial court and Court of Appeal denied habeas
relief on these claims. To exhaust the remedies available in
state court, Goodrum filed another habeas petition raising the
same claims in the California Supreme Court.

    In April 2007, while his habeas petition remained pending
before the California Supreme Court, Goodrum filed a pro se
habeas petition in federal court raising only the claims he had
already exhausted on direct appeal. Less than two months
later, on June 13, 2007, the California Supreme Court denied
relief, rendering his claims for police and prosecutorial
misconduct and ineffective assistance of counsel exhausted.
                    GOODRUM V. BUSBY                          5

On June 20, 2007, Goodrum sought to add these newly
exhausted claims to his federal habeas proceeding. But
instead of filing a motion in the district court to amend his
pending federal habeas petition, Goodrum filed in our court
an “Application for Leave to File Second or Successive
Petition.” As is customary, he attached to his application the
new habeas petition he sought leave to file.

    Goodrum thought he needed our court’s permission to file
the new petition because state prisoners must obtain
authorization from the court of appeals before filing a
“second or successive” petition in the district court.
28 U.S.C. § 2244(b)(3)(A). Goodrum assumed, not
unreasonably for a lay person, that he needed to obtain such
authorization because he had already filed one federal petition
two months earlier. But, as we will explain shortly,
Goodrum’s new petition was not a “second or successive”
petition as that term is used in § 2244. He did not need our
court’s permission to file it; he could have filed it in the
district court straight away. Instead of telling Goodrum that,
though, we issued an order in September 2007 that stated the
following:

           This application for authorization to file a
       second or successive 28 U.S.C. § 2254 habeas
       corpus petition in the district court is denied
       without prejudice to refiling should petitioner
       receive an unfavorable disposition of the first
       petition that is currently pending in the district
       court.

    Goodrum understandably interpreted this order to mean,
not that his request for leave to file the new petition was
unnecessary, but rather that it was premature, in the sense that
6                    GOODRUM V. BUSBY

he needed to finish litigating his pending April 2007 petition
before our court would consider the application. Goodrum
read the order to say that he could return to our court and
renew his request for leave to file the new petition if he failed
to win relief on the claims raised in his first petition.
Goodrum followed that course of action. He litigated the
claims raised in his April 2007 petition, and the district court
ultimately denied relief. On appeal, our court affirmed. We
denied Goodrum’s petition for rehearing en banc on
September 3, 2010, and the Supreme Court subsequently
denied his petition for certiorari.

    On October 29, 2010, as instructed, Goodrum returned to
our court and refiled his “Application for Leave to File
Second or Successive Petition.” In his application, Goodrum
noted that the September 2007 order had said he could refile
his application if he received an unfavorable disposition of
his first petition. “Now that this has happened,” he wrote,
“Petitioner now renews his Application in compliance with
that order.” On August 31, 2011, we granted him leave to file
the new petition.

    On September 23, 2011, Goodrum filed his new habeas
petition in the district court. On December 1, 2011, he
amended that petition with the district court’s permission.
(The claims alleged in the December 2011 petition are not
identical to the claims alleged in the petition Goodrum sought
leave to file back in June 2007. We address the implications
of that fact at the end of this opinion.)

     The district court dismissed the new petition with
prejudice. The court began by rejecting Goodrum’s argument
that his petition should not be deemed “second or successive”
at all. That classification matters because a petitioner raising
                    GOODRUM V. BUSBY                         7

new claims in a second or successive petition must meet a
more demanding standard to obtain relief than the standard
applicable to claims raised in a first petition. See 28 U.S.C.
§ 2244(b)(2). Goodrum argued that our court had erred by
denying his earlier application in September 2007. Rather
than denying the application, Goodrum asserted, we should
have construed it as a request to amend his then-pending
April 2007 petition and transferred the new petition, which he
had attached to his application, to the district court. His
claims would then have been reviewed, along with his other
pending claims, under the less demanding standard
applicable to first petitions. See 28 U.S.C. § 2254(d)–(e). As
Goodrum pointed out, we held less than a year after issuing
the September 2007 order that when a pro se petitioner files
a new petition in the district court while an earlier-filed
petition is still pending, the district court must construe the
new petition as a motion to amend the pending petition rather
than as an unauthorized second or successive petition. Woods
v. Carey, 525 F.3d 886, 887–90 (9th Cir. 2008).

    The district court held that Woods v. Carey applies only
when a pro se petitioner files a new petition in the district
court—not, as in this case, when the petitioner files his new
petition in the court of appeals. The district court concluded
that Goodrum therefore had to meet the more demanding
standard applicable to second or successive petitions, and
that he could not do so. The court nonetheless granted
Goodrum a certificate of appealability on his claims for
police and prosecutorial misconduct and ineffective
assistance of counsel.
8                           GOODRUM V. BUSBY

                                        II

    Section 2244(b) states that “[a] claim presented in a
second or successive habeas corpus application under section
2254 that was not presented in a prior application shall be
dismissed,” subject to two narrow exceptions (one requiring
reliance on a new rule of constitutional law made retroactive
to cases on collateral review, the other requiring proof of
newly discovered facts). 28 U.S.C. § 2244(b)(2).1 Congress
added this provision as part of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Pub. L. No. 104–132,
§ 106(b), 110 Stat. 1214, 1220–21. Its purpose was to codify,
in modified form, the judge-made “abuse of the writ” doctrine
that federal courts had devised to combat serial filings by


    1
        Section 2244(b)(2) provides:

             A claim presented in a second or successive habeas
             corpus application under section 2254 that was not
             presented in a prior application shall be dismissed
             unless—

             (A) the applicant shows that the claim relies on a new
             rule of constitutional law, made retroactive to cases on
             collateral review by the Supreme Court, that was
             previously unavailable; or

             (B)(i) the factual predicate for the claim could not have
             been discovered previously through the exercise of due
             diligence; and

             (ii) the facts underlying the claim, if proven and viewed
             in light of the evidence as a whole, would be sufficient
             to establish by clear and convincing evidence that, but
             for constitutional error, no reasonable factfinder would
             have found the applicant guilty of the underlying
             offense.
                    GOODRUM V. BUSBY                         9

habeas petitioners. See Felker v. Turpin, 518 U.S. 651, 664
(1996). The doctrine developed around the premise that
habeas petitioners should generally be “entitled to one, but
only one, full and fair opportunity to wage a collateral
attack.” Beyer v. Litscher, 306 F.3d 504, 508 (7th Cir. 2002)
(quoting O’Connor v. United States, 133 F.3d 548, 550 (7th
Cir. 1998)). Petitioners seeking habeas relief were thus
required to conduct a diligent investigation before filing so
that all reasonably available claims could be included in their
first petition. McCleskey v. Zant, 499 U.S. 467, 490–91, 498
(1991); see Johnson v. United States, 196 F.3d 802, 805 (7th
Cir. 1999). Claims raised in a second or successive petition
were subject to dismissal as an abuse of the writ. Slack v.
McDaniel, 529 U.S. 473, 486 (2000).

    The pre-AEDPA abuse-of-the-writ doctrine required
courts to answer two distinct questions: Is the petition at
issue second or successive; and if so, should it be dismissed
as an abuse of the writ? To answer the former question,
courts developed a set of rules to determine when a
numerically second (or third, or fourth, etc.) petition should
be deemed second or successive. To answer the latter
question, courts developed a standard, which evolved over
time, to determine when a petition properly classified as
second or successive should be dismissed as an abuse of the
writ. At the time of AEDPA’s enactment, that standard
required courts to dismiss claims asserted in a second or
successive petition unless the petitioner could show either
“cause and prejudice” (basically a legitimate excuse for not
raising the claims in an earlier petition) or a fundamental
miscarriage of justice (that is, a showing of probable
innocence). McCleskey, 499 U.S. at 493–94.
10                 GOODRUM V. BUSBY

    When Congress enacted AEDPA, it changed the standard
used to determine when a petition properly classified as
second or successive should be dismissed as an abuse of the
writ. See 2 Randy Hertz & James S. Liebman, Federal
Habeas Corpus Practice and Procedure § 28.3[e], at 1725 (7th
ed. 2016) (Hertz & Liebman). Under AEDPA’s new
standard, if a second or successive petition presents claims
that were already raised in an earlier petition and denied on
the merits, those claims must be dismissed, period. 28 U.S.C.
§ 2244(b)(1). If a second or successive petition presents new
claims that were not previously raised, those claims must be
dismissed as well, unless the petitioner meets the stringent
standard mentioned above requiring reliance on a new rule of
constitutional law or proof of newly discovered facts.
§ 2244(b)(2).

    Congress did not, however, alter the set of rules federal
habeas courts had developed to determine whether a petition
is second or successive. Section 2244(b) incorporates the
phrase “second or successive,” and by its terms applies only
to claims raised in a “second or successive” petition, but
Congress did not attempt to define what “second or
successive” means. So courts have naturally assumed that the
term carries the same meaning it did under the pre-AEDPA
abuse-of-the-writ doctrine. Hill v. State of Alaska, 297 F.3d
895, 897–98 (9th Cir. 2002); Crouch v. Norris, 251 F.3d 720,
723–24 (8th Cir. 2001); Muniz v. United States, 236 F.3d 122,
127 (2d Cir. 2001) (per curiam). Whether a petition is second
or successive remains a threshold question under § 2244(b),
just as it was under the pre-AEDPA regime. Magwood v.
Patterson, 561 U.S. 320, 336–37 (2010); Muniz, 236 F.3d at
125. In other words, § 2244(b)’s demanding standard applies
only if a petition is properly classified as second or
successive.
                     GOODRUM V. BUSBY                         11

     “Second or successive” is a term of art in habeas corpus
law. Slack, 529 U.S. at 486. The Supreme Court “has
declined to interpret ‘second or successive’ as referring to all
§ 2254 applications filed second or successively in time, even
when the later filings address a state-court judgment already
challenged in a prior § 2254 application.” Panetti v.
Quarterman, 551 U.S. 930, 944 (2007). Instead, courts have
held that in certain circumstances petitions that follow an
earlier-filed petition should not be deemed second or
successive because, as a categorical matter, they do not
constitute an abuse of the writ. For example, if a petitioner
files a first petition that the court dismisses on technical
procedural grounds without reaching the merits, a subsequent
petition will not be deemed second or successive even if it
attacks the same judgment. See, e.g., Muniz, 236 F.3d at 129
(first petition erroneously dismissed as untimely); Phillips v.
Seiter, 173 F.3d 609, 610 (7th Cir. 1999) (first petition
dismissed because it was filed in the wrong court); Hamilton
v. Vasquez, 882 F.2d 1469, 1473 (9th Cir. 1989) (first petition
dismissed without prejudice because it contained unexhausted
claims). As a general principle, the rule that emerged is that
a petition will not be deemed second or successive unless, at
a minimum, an earlier-filed petition has been finally
adjudicated. Woods, 525 F.3d at 889; 2 Hertz & Liebman
§ 28.3[b], at 1674–75. Thus, when a petitioner files a new
petition while his first petition remains pending, courts have
uniformly held that the new petition cannot be deemed
second or successive. See, e.g., United States v. Sellner,
773 F.3d 927, 931–32 (8th Cir. 2014); Ching v. United States,
298 F.3d 174, 177 (2d Cir. 2002).

    We adopted the rule just mentioned as the law of our
circuit in Woods v. Carey, 525 F.3d 886 (9th Cir. 2008).
There, a pro se petitioner filed his first habeas petition in the
12                   GOODRUM V. BUSBY

district court. Before that petition had been finally
adjudicated, he filed a second petition in the same court. The
district court dismissed the second petition on the ground that
it was “second or successive” under § 2244(b)(3) and that the
petitioner needed, but had not obtained, our court’s
authorization to file it. We held that the district court erred
by regarding the new petition as second or successive
because, at the time the new petition was filed, the first
petition remained pending and had not been finally
adjudicated. Id. at 888–90. We further held that, because the
petitioner was proceeding pro se, the district court was
required to construe the new petition as a motion to amend
the first petition. Id. at 890. We vacated the district court’s
order dismissing the new petition and remanded for the court
to exercise its discretion in deciding whether to permit
amendment under Federal Rule of Civil Procedure 15. (The
petitioner had already amended his first petition once, so he
was not entitled to amend it again as a matter of right. Id. at
890 n.3.)

    The reason for the rule reflected in Woods is simple: A
petitioner who seeks to assert new claims before his first
petition has been finally adjudicated is not, by any stretch,
abusing the writ. He is instead attempting, as the abuse-of-
the-writ doctrine requires, to litigate all available claims in a
single proceeding. See Hill, 297 F.3d at 897–99. If the
district court improperly dismisses the second-in-time
petition instead of construing it as a motion to amend, the
case must be remanded so that the petition can be adjudicated
under the standard applicable to first petitions. See Muniz,
236 F.3d at 129.

    In our view, the dispositive question raised by this appeal
is whether our holding in Woods should apply not just to
                     GOODRUM V. BUSBY                          13

district courts, but to our court as well. For the only
difference between this case and Woods is that Goodrum filed
his second-in-time petition in this court—he attached it to his
June 2007 application—whereas the petitioner in Woods filed
his second-in-time petition in the district court. We can think
of no sound reason why the same obligation we imposed on
district courts in Woods should not apply to our court (with
one caveat discussed below). If a pro se petitioner files an
application under § 2244(b)(3) requesting leave to file a new
petition while his first petition remains pending, our court,
too, should be obligated to construe the application as a
motion to amend the pending petition. That rule is necessary
because pro se petitioners are prone to make the same
mistake made by the district court in Woods: They may
erroneously assume that a new petition filed while their first
petition remains pending constitutes a “second or successive”
petition under § 2244(b)(3). And in cases involving doubt
about whether a petition will be deemed second or successive,
we want petitioners to seek authorization in our court first,
rather than filing directly in the district court. See Benton v.
Washington, 106 F.3d 162, 165 (7th Cir. 1996). When pro se
petitioners follow that prudent course, they should not receive
less protection than petitioners who barrel ahead in the
district court.

    There is one caveat, as mentioned above. When a new
petition is filed in the district court, that court is presumed to
know whether the earlier-filed petition remains pending.
That is not always true of our court. When we receive an
application for permission to file a new petition, we will not
necessarily know the status of an earlier-filed petition unless
the petitioner tells us. We do not have an obligation to
research the status of earlier-filed petitions to determine
whether a pro se petitioner is requesting leave to file a
14                    GOODRUM V. BUSBY

petition that is not in fact second or successive. See Pliler v.
Ford, 542 U.S. 225, 231 (2004). But when the petitioner
informs us that an earlier-filed petition remains pending (as
will typically be the case, since our court’s form application
specifically requests this information), we are no differently
situated from district courts with respect to the obligation
imposed by Woods. There is thus no reason in such cases
why the rule in Woods should not apply to our court as well.

    Upon construing an application under § 2244(b)(3) as a
motion to amend, our court’s obligation obviously differs
from the district court’s in terms of what to do next. When a
district court construes a new petition as a motion to amend,
that court’s obligation is to rule on the motion, in accordance
with the standards for permitting amendment established by
Federal Rule of Civil Procedure 15. See 28 U.S.C. § 2242;
Woods, 525 F.3d at 890. Our court lacks authority to rule on
such a motion in the first instance. But at least two options
are available to satisfy our obligation under Woods. We can
issue an order advising the pro se petitioner that his
application is being denied as unnecessary on the ground that
the new petition he seeks leave to file is not second or
successive, and that he is therefore free to file it in the district
court. See, e.g., Benton, 106 F.3d at 165 (using similar
language). The petitioner presumably will do so, which will
then trigger the district court’s obligation under Woods.
Alternatively, if the petitioner attaches the new petition to his
application, as our Circuit Rule 22-3(a)(1) requires, we can
transfer the petition to the district court under 28 U.S.C.
§ 2241(b) and Federal Rule of Appellate Procedure 22(a).
See Martinez-Villareal v. Stewart, 118 F.3d 628, 634–35 (9th
Cir. 1997) (per curiam), aff’d, 523 U.S. 637 (1998). That,
too, will trigger the district court’s obligation to construe the
new petition as a motion to amend under Woods.
                    GOODRUM V. BUSBY                         15

     In light of the above, we conclude that our court erred by
issuing the September 2007 order in the form that we did.
Most critically, we failed to inform Goodrum that the petition
he sought leave to file was not second or successive, and that
he was therefore free to file it in the district court. We
instead told him that his application was being denied
“without prejudice to refiling” it at a later time, in the event
that Goodrum received “an unfavorable disposition of the
first petition that is currently pending in the district court.”
Our order was affirmatively misleading (albeit
unintentionally so) because it suggested that Goodrum’s
application had been filed too early—that it would not be ripe
for our court’s consideration until after he had tried, but
failed, to win relief on the claims already pending before the
district court. That suggestion was inaccurate and, absent our
corrective here, would undoubtedly have prejudiced
Goodrum: By following our suggested course of action, he
would have forfeited any opportunity to have his new claims
adjudicated under the standard applicable to first petitions,
and would instead have been forced to satisfy the more
demanding standard applicable to second or successive
petitions under § 2244(b)(2). Goodrum should not be the one
to pay the price for our court’s unforced error.

    The State contends that our holding is inconsistent with
the Supreme Court’s decision in Pliler, which held that
federal courts are not obligated to make case-specific
assessments of the options open to a pro se litigant and then
to advise the litigant about the wisdom of choosing one
option over another. Pliler, 542 U.S. at 231–34. But that is
not the sort of obligation we are imposing here, any more
than it is the obligation we imposed on district courts in
Woods. We are simply applying a well-settled maxim—that
pleadings filed by pro se litigants are to be liberally
16                   GOODRUM V. BUSBY

construed—to the pleadings filed in our own court. Far from
requiring our court to make any case-specific advisements to
pro se petitioners about the wisdom of pursuing one option
over another, we hold only that our court has an obligation
when ruling on a pro se petitioner’s application under
§ 2244(b)(3) not to affirmatively mislead him as to the reason
the application was denied. That is unfortunately what we
did here, and remedying the error does not, as the State
contends, require us “to act as counsel or paralegal” to
Goodrum. Id. at 231.

    The question that remains is what we should do to remedy
the error. We think the most sensible remedy is to place
Goodrum in the position he would have occupied had our
court not erred in the first place. Had we properly construed
his June 2007 application under § 2244(b)(3) as a motion to
amend, we would have told him that he did not need our
court’s permission to file his new petition in the district court,
and he presumably would have done that forthwith. Or,
alternatively, we would have transferred his new petition to
the district court. In either event, the district court would
have been required to decide whether to allow amendment of
Goodrum’s pending first petition in accordance with the
standards set by Federal Rule of Civil Procedure 15. Here,
however, unlike in Woods, the district court would not have
had the discretion to deny leave to amend. Goodrum was
entitled to amend his petition as of right in June 2007 because
at that point the State had not yet filed a response to his
original petition. See Mayle v. Felix, 545 U.S. 644, 663
(2005). For that reason, we remand this case to the district
court with instructions to adjudicate the petition Goodrum
filed with this court in June 2007 as a first petition, not as a
second or successive petition. See Muniz, 236 F.3d at 129.
                        GOODRUM V. BUSBY                               17

    We recognize that there are some differences between the
claims alleged in Goodrum’s June 2007 petition and the
claims alleged in the amended petition he eventually filed in
the district court in December 2011. We leave it to the
district court to decide on remand whether the claims alleged
in the December 2011 petition reflect permissible
amendments to the claims alleged in the June 2007 petition.
Goodrum is entitled to litigate the set of claims alleged in the
June 2007 petition, including permissible amendments to
those claims, see Mayle, 545 U.S. at 664; Hebner v. McGrath,
543 F.3d 1133, 1137–38 (9th Cir. 2008), under the standard
applicable to first petitions. 28 U.S.C. § 2254(d)–(e).
Whether Goodrum is entitled to relief under that standard is
a matter the district court must resolve in the first instance,
after conducting an evidentiary hearing if necessary.2

     REVERSED and REMANDED.




 2
   To the extent Goodrum’s December 2011 petition raises claims that do
not qualify as permissible amendments to the June 2007 petition, those
claims are subject to the standard governing second or successive petitions
under § 2244(b)(2).
