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.

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.