Belmontes

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO BELMONTES,  No. 01-99018 Petitioner-Appellant, D.C. No. v. CV-89-00736-DFL ROBERT L. AYERS, JR., Warden for  Eastern District of the California State Prison at San California, Quentin, Sacramento Respondent-Appellee.  En Banc ORDER

Filed December 30, 2008

Before: Stephen Reinhardt, Diarmuid F. O’Scannlain and Richard A. Paez, Circuit Judges.

Order; Concurrence by Judge Reinhardt; Dissent by Judge Callahan

ORDER

Judges Reinhardt and Paez voted to deny the Respondent- Appellee’s petition for rehearing and rehearing en banc. Judge O’Scannlain voted to grant the petition for rehearing and rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the mat- ter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is denied.

16807 16808 BELMONTES v. AYERS…