FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TIMOTHY LEE BYRD,  Petitioner-Appellant, No. 06-15977 v. D.C. No. CV-02-02013-MCE GAIL LEWIS, WARDEN, PLEASANT VALLEY STATE PRISON; EDMUND G.  Eastern District of BROWN, ATTORNEY California, GENERAL FOR THE STATE OF Sacramento CALIFORNIA, ORDER Respondents-Appellees.  Filed May 15, 2009 Before: J. Clifford Wallace and Johnnie B. Rawlinson, Circuit Judges, and Jane A. Restani,* Judge.

ORDER This case is resubmitted for decision on May 8, 2009. The accompanying majority and concurring opinions supersede the withdrawn majority and concurring/dissenting opinions filed on December 11, 2007 and published at 510 F.3d 1045.

The pending petition for rehearing and suggestion for rehear- ing en banc are dismissed as moot. The parties may file peti- tions for rehearing and/or rehearing en banc of this superseding opinion in accordance with the Federal Rules of Appellate Procedure and the Rules of the United States Court of Appeals for the Ninth Circuit.

*The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.

5837 PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2009 Thomson Reuters/West.