David Charles Sly, Petitioner-appellant, v. Ron Angelone, Respondent-appellee, 66 F.3d 336 (9th Cir. 1995)

MEMORANDUM^** 

David Charles Sly, a Nevada state prisoner, appeals pro se the district court's dismissal of his second petition for relief under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 2253, and we vacate and remand.

We review for abuse of discretion a district court's refusal to consider the merits of a habeas petition on the ground that the petition is successive or abusive. Campbell v. Blodgett, 997 F.2d 512, 516, (9th Cir. 1992) cert. denied, 114 S. Ct. 1337 (1994).

Sly is serving a life sentence for murdering a sixteen-month old girl in 1987. The district court dismissed Sly's first petition for habeas relief in 1991 because he had failed to exhaust his claims in state court. The district court dismissed his second petition in 1994 on the ground that each of his claims was either successive or an abuse of the writ. The state concedes on appeal that a habeas petition cannot be dismissed as successive unless it has already been considered on the merits. The state maintains, however, that Sly's petition can still be dismissed on the ground that it is abusive under McCleskey v. Zant, 499 U.S. 467 (1991). Our law holds otherwise. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (" [a] dismissal for failure to exhaust does not render a later petition an abuse of the writ under McCleskey "). Accordingly, we vacate the district court's order and remand to enable that court to consider Sly's exhausted claims on the merits.

VACATED AND REMANDED.