Does a decision on the merits of a second habeas petition arising from a conviction for assault be considered a "dismissal" on the basis of the statute of limitations?

years. Id. The court dismissed petitioner's challenge as barred by the statute of limitations, and as failing to state a cognizable constitutional claim. Mot., Ex. 2 (May 14, 2010 Order). The district court's dismissal of the earlier filed petition constitutes a decision on the merits. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) ("[D]ismissal of a habeas petition as untimely constitutes a disposition on the merits and . . . a further petition challenging the same conviction [is] 'second or successive' for purposes of 28 U.S.C. 2244(b).").