FILED FOR PUBLICATION NOV 21 2012

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

TYRONE W. MILES, No. 10-15633

Petitioner - Appellant, D.C. No. 1:08-cv-01002-JF Eastern District of California, v. Fresno

MICHAEL MARTEL, Warden, ORDER Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of California Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted February 15, 2012 Submission Vacated February 21, 2012 Resubmitted September 28, 2012 San Francisco, California

Before: HUG, and PAEZ, Circuit Judges.

Having considered the parties’ stipulation and joint motion to vacate the court’s opinion in this case, the court orders the following:

1. The opinion filed on September 28, 2012 and reported at 696 F.3d 889 is withdrawn.

2. This case is ordered remanded to the district court with directions to enter judgment granting a writ of habeas corpus directing that Petitioner Miles be released from custody as soon as possible and no later than 48 hours after entry of the district court’s judgment. 3. The filing of this order shall serve as the court’s mandate.

IT IS SO ORDERED. COUNSEL

Michael S. Romano (argued), Mills Legal Clinic, Stanford, CA for petitioner- appellant.

David Eldridge (argued), Office of the California Attorney General, Sacramento, CA for respondents-appellees.