                                                                             FILED
                             NOT FOR PUBLICATION                              APR 19 2010

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




                             FOR THE NINTH CIRCUIT



EARNEST S. HARRIS,                                No. 08-16571

               Petitioner - Appellant,            D.C. No. 2:07-CV-00939-LKK

  v.
                                                  MEMORANDUM *
ROBERT A. HOREL, Warden,

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence K. Karlton, District Judge, Presiding

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       California state prisoner Earnest S. Harris appeals pro se from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.

       Harris contends that the instant habeas petition should not have been

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissed as successive. Because the instant pro se habeas petition was filed

before adjudication of Harris’ earlier petition was complete, we vacate the district

court’s order dismissing the instant petition as successive, and remand with

instructions to construe the instant petition as a motion to amend the earlier petition

then pending in the district court. See Woods v. Carey, 525 F.3d 886, 888-890 (9th

Cir. 2008).

      VACATED and REMANDED.




                                           2                                    08-16571
