                  FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 RAYNARD PAUL CUMMINGS,                    No. 11-99011
             Petitioner-Appellant,
                                              D.C. No.
                  v.                       2:95-cv-07118-
                                                CBM
 MICHAEL MARTEL, Warden,
 California State Prison at San
 Quentin,                                     ORDER
                 Respondent-Appellee.


                   Filed April 29, 2016

 Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
 O’Scannlain and M. Margaret McKeown, Circuit Judges.


                         ORDER

    The opinion filed on August 11, 2015, slip op. 11-99011,
and appearing at 796 F.3d 1135 (9th Cir. 2015), is amended
as follows. At slip op. page 16–17 n.2, replace the current
footnote with the following footnote text:

            Chief Judge Thomas’s dissent sidesteps
       AEDPA and reviews Turner’s special
       relationship prong de novo because, in his
       view, the California Supreme Court
       improperly layered a prejudice-balancing test
2                 CUMMINGS V. MARTEL

       on top of the Turner inquiry. See Thomas
       Partial Dissent at 6–7. A close look at the
       record reveals the source of this
       misapprehension of the court’s opinion. In
       the state trial court, Cummings asserted a
       claim under California Evidence Code § 352,
       and on direct appeal before the California
       Supreme Court, he repeatedly asserted he was
       prejudiced by La Casella’s testimony. At the
       outset of its analysis, presumably in response
       to Cummings’s arguments relating to
       prejudice, the California Supreme Court noted
       its agreement with the trial court that “the
       probative value of [La Casella’s] testimony
       outweighed any prejudice to Cummings.”
       850 P.2d at 37. Significantly, however, the
       California Supreme Court continued on to
       frame the inquiry as one of due process, not a
       mere evidentiary issue governed by a
       prejudice-balancing test; quoted extensively
       the relevant standards from Gonzalez and
       Beto; and carefully distinguished Cummings’s
       case with respect to both prongs of Turner.
       Id. at 37–38. The California Supreme Court
       squarely held: “Neither defendant’s right to a
       fair trial, nor his right to a jury trial was
       undermined by the admission of LaCasella’s
       testimony.” Id. at 38.

   With these amendments, Judges O’Scannlain and
McKeown have voted to deny the petition for panel rehearing
and rehearing en banc. Chief Judge Thomas has voted to
grant the petition for panel rehearing and rehearing en banc.
                   CUMMINGS V. MARTEL                       3

    The full court has been advised of the petition for
rehearing and 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 petition for rehearing
en banc are DENIED. No further petitions for en banc or
panel rehearing shall be permitted.
