                    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the withdrawn majority and concurring/dissenting opinions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.

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