Hoffman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAXWELL HOFFMAN, 

Petitioner-Appellant, No. 02-99004 v. D.C. No. ARVON J. ARAVE, Warden, Idaho  CV-94-00200-S- Maximum Security Institution, BLW Department of Correction, State of

ORDER

Idaho, Respondent-Appellee.  Filed March 6, 2007

Before: Harry Pregerson, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

Order; Dissent by Judge Bea

ORDER

The panel, as constituted above, have voted unanimously to deny both the petition for rehearing and the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc, but the request failed to receive a majority of votes of the active judges in favor of en banc rehearing. The petition for rehearing and the petition for rehearing en banc are denied.

2451 2452 HOFFMAN v. ARAVE BEA, Circuit Judge, with whom KOZINSKI, O’SCANNLAIN, KLEINFELD, TALLMAN, BYBEE and CALLAHAN, Circuit Judges, join, dissenting from the denial of rehearing en banc:

The panel’s decision has effectively written out of the law the requirement that…