                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SCOTT LYNN PINHOLSTER,                
              Petitioner-Appellee,           No. 03-99003
               v.                             D.C. No.
ROBERT L. AYERS, Jr., Warden,              CV-95-06240-GLT
           Respondent-Appellant.
                                      

SCOTT LYNN PINHOLSTER,                      No. 03-99008
             Petitioner-Appellant,
               v.                             D.C. No.
                                           CV-95-06240-GLT
ROBERT L. AYERS, Jr., Warden,
                                               ORDER
            Respondent-Appellee.
                                      
                    Filed March 20, 2009


                           ORDER

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 Circuit
Rule 35-3. The three-judge panel opinion shall not be cited as
precedent by or to any court of the Ninth Circuit.




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