FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2013 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS

JOSHUA JAMES FROST, No. 11-35114 Petitioner - Appellant, D.C. No. 2:09-cv-00725-TSZ v. ORDER RON VAN BOENING, Superintendent, Respondent - Appellee.

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 Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35–3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.