Brent Ray BREWER, Petitioner-Appellee, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant, 474 F.3d 207

PER CURIAM: A member of the court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service and not disqualified not having voted in favor (Fed. R.App. P. 35 and 5th Cm. R. 35), the Petition for Rehearing En Banc filed by appellee Brent Ray Brewer is DENIED. This order is entered, and the court voted to deny rehearing en banc, solely to resolve any potential question of the judgment’s finality in this court and to clarify the Supreme Court’s jurisdiction over the case.

Further, this court’s vote should not be taken as conflicting with or modifying the majority decision in the recent en banc case, Nelson v. Quarterman, No. 02-11096, 2006 WL 3592953 (5th Cir. Dec. 11, 2006). The mandate shall issue forthwith. Judges King, Jolly, Davis, Barksdale, Bena-vides, Stewart, Dennis, and Clement did not vote.