The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's unopposed motion to dismiss (Doc. 11).
Petitioner was convicted of forcible lewd acts upon a child under the age of fourteen and, on May 1, 1995, he was sentenced to a determinate prison term of six years. The conviction and sentence were affirmed on direct appeal by the California Court of Appeal on October 22, 1996. The California Supreme Court denied review of January 15, 1997. With the assistance of retained counsel, petitioner then filed one state court post-conviction action in the California Supreme Court on January 12, 1998, which was denied on April 29, 1998.
On May 4, 1998 -- while the above-referenced state court post-conviction action was still pending -- petitioner filed a federal habeas corpus petition in this court. The matter was docketed as Fisher v. Cambra, CIV-S-98-0787-WBS-DAD-P. The petition was denied on the merits and judgment was entered on October 10, 2001. Petitioner appealed to the Ninth Circuit Court of Appeals, which affirmed the judgment on June 20, 2003. The United States Supreme Court denied certiorari on January 12, 2004.
On November 29, 2004, petitioner was released on parole. Parole was discharged on March 11, 2005.
The instant action was initially filed in the United States District Court for the Northern District of California on February 4, 2009, and transferred to this court on March 17, 2009.
Respondent argues that this petition must be dismissed because: (1) it is a second or successive petition filed without first obtaining leave of the Ninth Circuit; (2) it is untimely; and (3) petitioner no longer meets the "in custody" requirement.*fn1
A. Second or Successive Petition
Under 28 U.S.C. § 2244(b)(1), "[a] claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed." Under § 2244(b)(2), "[a] claim presented in a second or successive habeas corpus application . . . that was not presented in a prior application shall be dismissed. . . ." unless one of two circumstances exist. Either the newly raised claim must rely on a new rule of constitutional law, or the factual predicate of the new claim could not have been discovered earlier through the exercise of due diligence and the new claim, if proven, establishes actual innocence. See id. Before a second or successive petition potentially permissible under § 2244(b)(2) can be filed, the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C. § 2244(b)(3). In the absence of proper authorization from the Court of Appeals, the district court lacks jurisdiction to consider a second or successive petition and must dismiss it. See Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (per curiam).
A second petition can only be successive of a prior petition which has been decided on the merits. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Where a prior petition has been dismissed without prejudice for failure to exhaust state court remedies, the dismissal does not result in an adjudication on the merits and a habeas petition filed in the district court after the initial petition was dismissed is not second or successive. See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Neither the United States Supreme Court nor the Ninth Circuit has decided whether a dismissal on statute of limitations grounds constitutes an adjudication on the merits. The Second Circuit has concluded that such a dismissal is a merits determination. See Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005). While not directly answering the question, the United States Supreme Court cited the Murray decision favorably in Gonzalez v. Crosby, 545 U.S. 524, 533 n.6 (2005). Other courts have followed Murray. See Mullins v. Horel, 2008 WL 3244341 (E.D. Cal. 2008); Richards v. Horel, 2006 U.S. Dist. LEXIS 79443 (E.D. Cal. 2006). This court agrees with the Murray conclusion. In particular, a dismissal without prejudice for lack of exhaustion, which holds open the possibility of a future merits adjudication, is distinguishable from a timeliness dismiss, which is with prejudice to returning to federal court. Cf. Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (citing Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th Cir. 1990), and stating that the denial of a petition on procedural default grounds is a determination that the claims will not be considered by the federal court).
Clearly, the instant federal petition is successive of the 1998 action in this court because both petitions relate to the same conviction and sentence and the prior petition was denied on the merits. In the prior federal petition, petitioner argued that he received ineffective assistance of appellate counsel, and that the trial court erred in admitting evidence of uncharged misconduct. In the instant petition, petitioner argues improper "charges and instructions to jury by jury trial" and "ineffectual assistance of counsel."*fn2 Because petitioner did not obtain leave ...