                    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.

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