Appeal from the United States District Court for the Northern District of California, Jeremy Fogel, District Judge, Presiding. D.C. No. CV-02-00901-JF.
Before: CANBY, BEEZER and KOZINSKI, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Joseph Lawrence Levesque appeals from the district court's dismissal of his 28 U.S.C. § 2254 habeas petition as second or successive. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Levesque mistakenly contends that the district court erred by finding that the dismissal of his prior federal habeas petition as time-barred rendered his instant petition successive. See Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.2005) (holding that a prior petition dismissed based on state procedural default is a determination on the merits rendering a subsequent petition successive).
AFFIRMED.