Benitez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRISTOBAL RODRIGUEZ BENITEZ,  No. 04-56231 Petitioner-Appellant, D.C. No. v.  CV-02-00489-DMS SYLVIA GARCIA, Warden, ORDER AND Respondent-Appellee.  OPINION

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Argued and Submitted July 13, 2005—Pasadena, California

Filed January 22, 2007

Before: Jerome Farris, Dorothy W. Nelson, and Richard C. Tallman, Circuit Judges.

Per Curiam Opinion COUNSEL

Barbara Strickland, San Diego, California, for the appellant.

Matthew Mulford, Deputy Attorney General, San Diego, Cali- fornia, for the appellee.

ORDER

The panel opinion filed on May 23, 2006, 449 F.3d 971, is withdrawn and a substitute opinion is filed simultaneously 880 BENITEZ v. GARCIA with this order. The petition for rehearing and for rehearing en banc is denied as moot without prejudice to renewal by either party following filing of the new opinion.

OPINION

PER CURIAM:

Cristobal Rodriguez Benitez was arrested in…