
    Jerome MARKAY, Petitioner—Appellant, v. L.E. BROWN; State of California, Respondent—Appellee.
    No. 03-16055.
    D.C. No. CV-02-00152-GEB/GGH.
    United States Court of Appeals, Ninth Circuit.
    Submitted Jan. 10, 2005.
    
    Decided Jan. 12, 2005.
    Donald S. Frick, Esq., Sacramento, CA, for Petitioner-Appellant.
    Catherine Tennant, Jo Graves, DAG, Sacramento, CA, for Respondent-Appellee.
    Before NOONAN, TASHIMA, and CALLAHAN, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

The petitioner asserts that his second habeas petition does not qualify as successive because he filed it before the district court had ruled on his earlier habeas petition. The record demonstrates, and the respondent concedes, that the petitioner is correct. The district court should have treated the second petition as a motion to amend the pending petition. 28 U.S.C. § 2244(b); Ching v. United States, 298 F.3d 174, 176-179 (2d Cir.2002); see also Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993). The district court’s order dismissing the second petition is VACATED and the matter is REMANDED with instructions that the district court construe the petitioner’s second petition as a motion to amend his earlier petition. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     