Michael Leonetti v. Brian Williams; Attorney General of the State of Nevada

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL LEONETTI,
Petitioner - Appellant,
v.
BRIAN WILLIAMS; ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
No. 10-15817
D.C. No. 2:10-cv-00180-PMP-
LRL
MEMORANDUM*
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
FILED
AUG 22 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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.

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“AEDPA does not define the terms ‘second or successive.’” Henderson,1
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.”).
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The AEDPA requires that a “second or successive” § 2254 petition be1
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

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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.

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REVERSED and REMANDED.

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