Perez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBINO PEREZ,  No. 04-15279 Petitioner-Appellant, D.C. No. v.  CV-02-05237-WHA

TERRY ROSARIO, ORDER AND

Respondent-Appellee. AMENDED  OPINION

Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding

Argued and Submitted December 6, 2004 Submission Deferred December 8, 2005 Resubmitted May 22, 2006 San Francisco, California

Filed May 22, 2006 Amended July 13, 2006

Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

*The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation. COUNSEL

Kent A. Russell, Russell and Russell, San Francisco, Califor- nia, argued the cause for the petitioner-appellant and was on the briefs.

Christopher W. Grove, Deputy Attorney General of the State of California, San Francisco, California, argued the cause for the respondent-appellee; Bill Lockyer, Attorney General of…