Baldwin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER PAUL SMITH,  No. 04-35253 Petitioner-Appellant, v.  D.C. No.

CV-98-00059-OMP

GEORGE H. BALDWIN,

ORDER

Respondent-Appellee.  Filed April 6, 2007

Before: Mary M. Schroeder, Chief Judge.

ORDER

Upon the vote of a majority of nonrecused regular active judges of this court,1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three- judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

1 Judge Graber is recused.

4113

PRINTED FOR

ADMINISTRATIVE OFFICE—U.S. COURTS

BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2007 Thomson/West.