Belmontes

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO BELMONTES, JR.,  No. 01-99018 Petitioner-Appellant, D.C. No. v. CV-89-00736-DFL JOHN STOKES, Warden, for the  Eastern District of California State Prison at San California, Quentin,* Sacramento Respondent-Appellee.  ORDER

Filed October 24, 2005

Before: Stephen Reinhardt, Diarmuid F. O’Scannlain, and Richard A. Paez, Circuit Judges.

Order; Dissent by Judge Callahan

ORDER

A judge requested a vote on whether to rehear this case en banc. The case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The request for rehearing en banc is denied.

*John Stokes is substituted for his predecessor, Jill L. Brown, as War- den of California State Prison at San Quentin. See Fed. R. App. P. 43(c)(2).

14489 14490 BELMONTES v. STOKES CALLAHAN, Circuit Judge, with whom O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE and BEA, Cir- cuit Judges, join, dissenting from…