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, 

, 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, 

, 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, 

,
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, 

, 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). 

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,

, 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, 

, 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, 

(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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