                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 22 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL LEONETTI,                                No. 10-15817

              Petitioner - Appellant,            D.C. No. 2:10-cv-00180-PMP-
                                                 LRL
  v.

BRIAN WILLIAMS; ATTORNEY                         MEMORANDUM *
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                     Argued and Submitted February 15, 2012
                            San Francisco, California

Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.

       Petitioner - Appellant Michael Leonetti (“Leonetti”) appeals the dismissal

with prejudice of his pro se federal habeas petition under 28 U.S.C. § 2254. The

district court held that under 28 U.S.C. § 2244(b), the petition Leonetti submitted



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
in 2010 (the “2010 petition”) was a successive petition because Leonetti previously

filed a petition challenging the same conviction in 2007 (the “2007 petition”). The

district court had previously dismissed the 2007 petition under Rule 4 of the Rules

Governing Section 2254 Cases (“Rule 4”) for failure to state a cognizable claim for

habeas relief. We have jurisdiction under 28 U.S.C. § 2253. We reverse and

remand.

      We review de novo the district court’s denial of a habeas petition, Woods v.

Carey, 525 F.3d 886, 888 (9th Cir. 2008), and also its determination that a habeas

petition is “second or successive” for purposes of the Antitterrorism and Effective

Death Penalty Act (“AEDPA”). Henderson v. Lampert, 396 F.3d 1049, 1052 (9th

Cir. 2005). A district court’s dismissal of a petition as containing successive

claims is reviewed for abuse of discretion. Woods, 525 F.3d at 888.




                                     Page 2 of 5
       The AEDPA requires that a “second or successive”1 § 2254 petition be

dismissed unless it meets certain exceptions. 28 U.S.C. § 2244(b). “That a

prisoner has previously filed a federal habeas petition does not necessarily render a

subsequent petition ‘second or successive.’” Henderson, 396 F.3d at 1053.

Instead, a habeas petition may be denied as second or successive only when the

prior petition was or could have been decided on the merits. McNabb v. Yates, 576

F.3d 1028, 1029 (9th Cir. 2009); see Sanders v. United States, 373 U.S. 1, 15–17

(1963) (holding that a district court could only use the prior determination to deny

a subsequent petition when the prior determination was on the merits). Generally,

a district court's dismissal is on the merits if the district court “considers and rejects

the claims or determines that the underlying claim will not be considered by a

federal court.” McNabb, 576 F.3d at 1029. Dismissal due to a deficiency in the

pleadings, however, is not a determination of the legality of the petitioner’s



       1
        “AEDPA does not define the terms ‘second or successive.’” Henderson,
396 F.3d at 1053 (quoting Hill v. Alaska, 297 F.3d 895, 897 (9th Cir. 2002)).
Rather, they are terms of art that incorporate the equitable abuse of the writ
doctrine. See Slack v. McDaniel, 529 U.S. 473, 486 (2000) (defining "second or
successive” as a “term of art” and suggesting that the definition would be the same
under AEDPA as under pre-AEDPA law); Felker v. Turpin, 518 U.S. 651, 664
(1996) (finding that § 2244 codified the equitable abuse of the writ doctrine);
Henderson, 396 F.3d at 1053 (“We may look to pre-AEDPA decisions involving
the successive petition doctrine to interpret AEDPA's provisions on successive
petitions.”).

                                       Page 3 of 5
detention and is not an adjudication on the merits. Sanders, 373 U.S. at 19; see

Dellenbach v. Hanks, 76 F.3d 820, 822–23 (7th Cir. 1996) (holding that a

dismissal based on general implausibility or on a deficiency in the pleadings is not

on the merits and does not create a § 2244 bar to filing a new petition).

      Here, the district court erred in dismissing the 2010 petition as a successive

petition. The 2010 petition is not a successive petition subject to § 2244(b)

because the district court did not reach the merits of the 2007 petition. To the

contrary, the district court dismissed the 2007 petition based on deficient pleading.

The district court did not state that it considered the legality of Leonetti’s

detention, and it did not state that it dismissed the 2007 petition “with prejudice.”

Further, in a January 2009 order denying a certificate of appealability, the district

court explicitly stated that “[t]he Court did not reach the merits of any of

petitioner’s claims” when it dismissed the 2007 petition on procedural grounds.

      In light of the January 2009 order, and in the absence of evidence that the

district court actually considered the merits of Leonetti’s detention, we decline to

accept the State’s invitation to presume that the dismissal of the 2007 petition was

an adjudication on the merits. Because the 2007 petition was not dismissed on the

merits, the district court misapplied the § 2244(b) bar and erred in dismissing the

2010 petition as a successive petition.


                                      Page 4 of 5
REVERSED and REMANDED.




                  Page 5 of 5
