Rose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WARREN DAVID ROSE, JR., 

Petitioner-Appellant, No. 05-16881 v. STEPHEN MAYBERG, Director,  D.C. No.

CV-03-01502-LKK

California Department of Mental

OPINION

Health, Respondent-Appellee.  Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior Judge, Presiding

Argued and Submitted June 14, 2006—San Francisco, California

Filed July 18, 2006

Before: Procter Hug, Jr. and Diarmuid F. O’Scannlain, Circuit Judges, and Jeffrey T. Miller,* District Judge.

Opinion by Judge O’Scannlain

*The Honorable Jeffrey T. Miller, United States District Judge for the Southern District of California, sitting by designation. COUNSEL

David Porter, Assistant Federal Defender, Sacramento, Cali- fornia, argued the cause for the appellant. Quin Denvir, Fed- 7918 ROSE v. MAYBERG eral Defender, Dennis S. Waks, Acting Federal Defender, and Ann C. McClintock, Assistant Federal Defender, Sacramento, California, were on the briefs.

Judy Kaida, Deputy Attorney General, Sacramento, Califor- nia,…