
    Roger Paul SMITH, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee.
    No. 04-35253.
    United States Court of Appeals, Ninth Circuit.
    April 6, 2007.
    Thomas J. Hester, FPDOR-Federal Public Defender’s Office, Portland, OR, for Petitioner-Appellant.
    Kathleen Cegla, AGOR-Office of the Oregon Attorney General, Salem, OR, for Respondent-Appellee.
   ORDER

SCHROEDER, Chief Judge.

Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. 
      
      . Judge Graber is recused.
     