Crater

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW CORTEZ CRATER,  No. 05-17027 Petitioner-Appellant, D.C. No. v. CV-01-01893-

GEORGE M. GALAZA,  MCE/GGH

Eastern District Respondent-Appellee. of California, Sacramento

 ORDER

Filed December 6, 2007

Before: Melvin Brunetti, Diarmuid F. O’Scannlain, and Stephen S. Trott, Circuit Judges.

Order; Dissent by Judge Reinhardt

ORDER

The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc. However, the en banc call failed to receive a majority of votes of the nonrecused active judges in favor of en banc consider- ation. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc are denied.

15995 15996 CRATER v. GALAZA REINHARDT, Circuit Judge, with whom Circuit Judges PREGERSON, GOULD, PAEZ, and BERZON join, dissent- ing from the denial of rehearing en banc:

I would hold that section 104 of…