                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          APR 16 2014

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                         U.S. COURT OF APPEALS




OSCAR RODRIGUEZ,                                  No. 10-55104

              Petitioner - Appellant,             D.C. No. 8:06-cv-00878-VAP-
                                                  MAN
  v.                                              Central District of California,
                                                  Santa Ana
DANIEL PARAMO, Warden,

              Respondent - Appellee.              ORDER


Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.*

       The memorandum disposition in the above-captioned matter filed on January

13, 2014 is amended as follows:

       At page 4, line 14, insert a new paragraph stating: <Appellant further

contends that the use of jury instructions in his trial that were based on the holding

of Johnson violated his due process rights because of what he describes as later

shifts in the law. However, because Johnson was not overruled by Howard and

there is no indication that the amended version of section 2800.2 was intended to

operate retroactively, the state courts’ reliance on Johnson in upholding appellant’s



       *
             The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
conviction did not violate his right to due process. The district court did not err in

denying his petition for habeas corpus on this ground.>.

      The panel has voted to deny the petition for panel rehearing. The full court

has been advised of the petition for rehearing en banc and no judge has requested a

vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for

panel rehearing and the petition for rehearing en banc are denied.

      No future petitions for rehearing or rehearing en banc will be entertained.

      IT IS SO ORDERED.
