FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SCOTT LYNN PINHOLSTER,  Petitioner-Appellee, No. 03-99003 v.  D.C. No. ROBERT L. AYERS, Jr., Warden, CV-95-06240-GLT Respondent-Appellant.  SCOTT LYNN PINHOLSTER,  No. 03-99008 Petitioner-Appellant, v.  D.C. No. CV-95-06240-GLT ROBERT L. AYERS, Jr., Warden, ORDER Respondent-Appellee.  Filed March 20, 2009

ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

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