Earnest S. HARRIS, Petitioner-Appellant, v. Robert A. HOREL, Warden, Respondent-Appellee, 376 F. App'x 759

MEMORANDUM California state prisoner Earnest S. Harris appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand. Harris contends that the instant habeas petition should not have been dismissed as successive.

Because the instant pro se habeas petition was filed before adjudication of Harris’ earlier petition was complete, we vacate the district court’s order dismissing the instant petition as successive, and remand with instructions to construe the instant petition as a motion to amend the earlier petition then pending in the district court. See Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir.2008). VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.