dissenting.
I respectfully dissent. Because Nims received an adjudication on the merits of all issues raised in a prior petition, his current petition should be considered “second or successive” under 28 U.S.C. § 2244(b). Nims did not seek authorization from this court prior to filing his current petition in the district court, and his petition does not meet the standards set forth in § 2244(b). Therefore, I would vacate the judgment denying the petition, and remand the case to the district court for dismissal.
Nims filed his first federal habeas corpus petition in June 1990. He alleged claims involving the admission of hearsay evidence, cruel and unusual punishment, and several instances of ineffective assistance of counsel. Nims received an adjudication on the merits of all those claims in August 1991. His juror misconduct claim, the only claim now before this court, was not raised until after Nims appealed the denial of his first petition to this court. Nims moved to dismiss his appeal so that he could return to district court and file an amended petition raising the juror misconduct claim. After we dismissed the appeal, Nims returned to the district court. The court dismissed Nims’s amended petition without prejudice because he had not yet exhausted the juror misconduct claim in state court. Nims then sought to exhaust his state remedies, and he did not return to federal court with this current habeas petition until May 27,1998.
As the majority notes, AEDPA governs this case because Nims filed the petition after AEDPA’s effective date. See Vancleave v. Norris, 150 F.3d 926, 927 (8th Cir.1998). As a result, we must examine whether AEDPA’s restrictions on our ability to review successive habeas petitions apply to this petition. A discussion of the Supreme Court’s decisions in Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), and Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), helps in that regard, as those cases examined the parameters of AEDPA’s restrictions.
The petitioner in Martinez-Villareal raised several claims in a pre-AEDPA petition, including a claim that he was incompetent to be executed, Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The district court denied Martinez-Villareal relief on the merits of all claims except the Ford claim, which the court dismissed as premature because the state had not yet issued an execution warrant. After the state obtained a warrant, Martinez-Villareal *704moved to reopen his petition to assert the Ford claim.5 Martinez-Villareal, 523 U.S. at 640, 118 S.Ct. 1618. The Court held that the motion to reopen the petition was not a “second or successive” petition:
This may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b). There was only one application for habeas relief, and the District Court ruled (or should have ruled) on each claim at the time it became ripe. Respondent was entitled to an adjudication of all of the claims presented in his earlier, undoubtedly renewable, application for federal habeas relief.
Id. at 643,118 S.Ct. 1618.
The Court contrasted Martinez-Villareal’s situation with that of a hypothetical prisoner who raises a new habeas claim only after the district court has fully adjudicated all claims raised in an initial petition:
This case does not present the situation where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner’s initial habeas application. Therefore, we have no occasion to decide whether such a filing would be a “second or successive habeas corpus application” within the meaning of AEDPA.
Id. at 645 n. *, 118 S.Ct. 1618 (emphasis added).
In Slack, the Court addressed a mixed petition, filed prior to AEDPA’s effective date, raising some claims that had been exhausted in state court and others that had not. Following Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the district court had dismissed the entire petition without prejudice so that the petitioner could fully exhaust his state remedies. After exhausting his state remedies, Slack returned to federal court with a second habeas petition. See Slack, 529 U.S. at 479, 120 S.Ct. 1595.
The district court dismissed the second petition, concluding that it was “second or successive.” The Supreme Court disagreed, holding that “a habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.” Id. at 485-86, 120 S.Ct. 1595. Although Slack’s subsequent petition was filed in 1995, prior to AEDPA’s effective date, the Court said, “we do not suggest the definition of second or successive would be different under AEDPA.” Id. at 486,120 S.Ct. 1595.
Unlike the petitions at issue in Martinez-Villareal and Slack, Nims’s petition should be considered “second or successive” under AEDPA. This case presents the situation to which the Court alluded in Martinez-Villareal, where a new claim is raised “for the first time in a petition filed after the federal courts have already rejected the prisoner’s initial habeas application.” Martinez-Villareal, 523 U.S. at 645, 118 S.Ct. at 1622 n. *. Nims sought to add a juror misconduct claim only after appealing his merits-denied petition to this court. Thus, unlike the Ford claim in Martinez-Villareal, Nims’s juror misconduct claim was never part of the original petition. Unlike the mixed petition in Slack, Nims received an adjudication on the merits of all claims raised in his original petition.
My view that Nims’s petition is “second or successive” is hardly novel. A key factor in determining whether a petition *705should be considered “second or successive” is whether a prior petition has been adjudicated on the merits. See Evans v. Smith, 220 F.3d 306, 325 (4th Cir.2000); Johnson v. United States, 196 F.3d 802, 805 (7th Cir.1999).
Applying AEDPA’s “second or successive” restrictions to this current petition likely frustrates our purpose in granting Nims’s motion to dismiss his first appeal. We folly expected that Nims would be able to return to our court for review of the issues raised in his first petition, as well as for review of the juror misconduct claim raised in an amended petition. Between the two appeals, however, Congress enacted AEDPA, altering the landscape of our expectations. For example, AEDPA now prevents us from reviewing any of the issues raised in Nims’s first petition, since Nims failed to meet AEDPA’s standards for obtaining a certificate of appealability on those issues. Likewise, I believe AED-PA’s restrictions on “second or successive” petitions prevent us from reviewing the merits of the juror misconduct claim.
Nims chose not to pursue appellate review of the issues raised in his first petition when he asked us to remand his case to the district court. By that point, however, the first petition had already been merits-decided in the district court, and thus should count for purposes of determining whether his current petition is “second or successive” under AEDPA. Cf. Johnson v. United States, 196 F.3d 802, 804 (7th Cir.1999) (suggesting that a petition will count even before it has been decided on the merits if “the prisoner gets a collateral attack under way and then abandons it in the face of looming defeat”). Nims’s other choice was to pursue his original appeal to conclusion, and risk a possible abuse-of-the-writ challenge to a subsequent petition raising the juror misconduct claim. Cf. Burris v. Farley, 51 F.3d 655, 658 (7th Cir.1995) (acknowledging that a remanded petition following an appeal may nevertheless be subject to an abuse-of-the-writ defense). The fact that Nims chose the former over the latter does not exempt his current petition from satisfying AED-PA’s “second or successive” restrictions.
In my view, Nims’s current petition could be saved from AEDPA’s restrictions on “second or successive” petitions only if our order dismissing the original appeal, and remanding to the district court, could be. construed as vacating the district court’s judgment denying Nims’s first petition. While a remand order entered pursuant to a district court’s request to remand is comparable to vacatur of the original judgment, see 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1489, at 697-98 (2d ed.1990) (citing Markert v. Swift & Co., 173 F.2d 517 (2d Cir.1949)), I am unaware of any authority that suggests that a party’s choice to abandon an appeal and seek remand affects the finality of a judgment. When Nims sought remand following the appeal of the denial of his first petition, his amended petition was subject to an exhaustion challenge and dismissal under Rose v. Lundy. The subsequent dismissal of his amended petition, however, did not alter the finality of the district court’s judgment on the merits of every issue raised in Nims’s original petition.
In failing to consider Nims’s current petition in light of AEDPA’s “second or successive” requirements, I fear the majority sets a bad precedent. The majority permits a prisoner to file a petition in district court, receive a complete adjudication on the merits, appeal, dismiss the appeal to add a new claim, and start all over ivithout penalty. This sequence is certainly appropriate when the new claim either (a) relies on a new rule of constitu*706tional law made retroactive by the Supreme Court, or (b) is based on a factual predicate which could not have been discovered through the exercise of due diligence and which would convincingly establish the prisoner’s actual innocence, see 28 U.S.C. § 2244(b)(2) (setting forth the requirements for filing a second or successive petition), but Nims’s juror misconduct claim fits neither exception.
I recently sat on a panel that rejected a strict literal reading of AEDPA’s reference to “second or successive.” See Crouch v. Norris, 251 F.3d 720, 722 (8th Cir.2001). In doing so, we noted that the phrase involves the application of pre-AEDPA abuse-of-the-writ principles. Id.; see also Vancleave v. Norris, 150 F.3d at 928 (noting that, in Martinez-Villareal, the Supreme Court avoided an “overly literal construction” of the phrase when the second petition did not implicate abuse-of-the-writ principles). Our decision in Crouch turned on the fact that the prisoner’s second petition was not abusive because he was unable to bring the claim at issue (a challenge to the execution of his sentence, rather than the validity of his conviction) in his first petition, and because his second petition would not frustrate AEDPA’s concerns with delay and finality. Crouch, 720 F.3d at 724. Neither factor is present here. Nims could have brought his juror misconduct claim in his merits-denied first petition; and reviewing the juror misconduct claim now, on the merits, frustrates both AEDPA’s concern with delay and with the finality of Nims’s 1983 conviction. Furthermore, the procedure implicitly approved by the panel allows prisoners to abuse the writ, and ought therefore to be subject to the strictures of AEDPA’s “second or successive” requirements.
Because Nims failed to comply with the certification requirements for “second or successive” petitions, the district court lacked the power and authority to entertain his current petition. See Boykin v. United States, No. 99-3369, 2000 WL 1610732, at *1 (8th Cir. Oct.30, 2000) (collecting cases). I would therefore vacate the judgment of the district court, and remand this case to be dismissed for lack of jurisdiction, instead of reaching the merits of Nims’s juror misconduct claim.
. He brought the motion to reopen after AED-PA’s effective date.