ORDER

The opinion filed November 13, 2000 [232 F.3d 666], is hereby ordered amended as follows:

Slip Op. at 14430: Delete “AFFIRMED” and add the following new paragraphs to the end of the opinion:

“Nevertheless, because Lyons’s habe-as petition included a number of exhausted claims which the district court dismissed without prejudice at Lyons’s request, we remand this action to the district court to provide Lyons with the opportunity to proceed on such exhausted claims only.

AFFIRMED and REMANDED.”

Except as herein modified, the panel has voted unanimously to deny the Petition for Rehearing. Judge Gould and Judge O’Scannlain have voted to reject the Suggestion for Rehearing En Banc and Judge Leavy so recommends.

The full court was advised of the Suggestion for Rehearing En Banc. A judge of this court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of *905the nonrecused active judges in favor of en banc consideration.

The Petition and the Suggestion are thus DENIED.

The mandate shall issue forthwith.