Cesar SARAUSAD, Petitioner-Appellee, v. Carol PORTER, Respondent-Appellant, 503 F.3d 822

Order; Dissent by Judge CALLAHAN. Judge Reinhardt and Judge W. Fletcher voted to deny the petition for rehearing en banc. Judge Bybee voted to grant the petition for rehearing en banc. A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f). The petition for rehearing en banc, filed March 19, 2007, is DENIED. The initial order concerning Petitioner Sarausad’s custody is VACATED, and the district court is instructed on remand to decide whether Sarausad should remain in custody pending the state’s decision to retry him.