UNITED STATES COURT OF APPEALS March 3, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

TIMOTHY SUMPTER,

Petitioner - Appellee/Cross- Appellant,

v. Nos. 20-3186 & 20-3206 (D.C. No. 5:19-CV-03267-JWL) STATE OF KANSAS, (D. Kan.)

Respondent - Appellant/Cross- Appellee.

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NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Amicus Curiae. _________________________________

ORDER _________________________________

Before HOLMES, Chief Judge, and KELLY, and MATHESON, Circuit Judges. _________________________________

These matters are before the court on the Petition for Rehearing filed by

Petitioner-Appellee/Cross-Appellant. We also have a response from Respondent-

Appellant/Cross-Appellee.

Pursuant to Fed. R. App. P. 40, panel rehearing is granted in part to the extent of

the modifications in the attached revised opinion. The court’s December 28, 2022 opinion Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 2

is withdrawn and replaced by the attached revised opinion effective nunc pro tunc to the

date the original opinion was filed.

The petition for rehearing and the attached revised opinion were transmitted to all

judges of the court who are in regular active service. As no member of the panel and no

judge in regular active service on the court requested that the court be polled, the request

for rehearing en banc is denied. See Fed. R. App. P. 35(f).

Petitioner-Appellee/Cross-Appellant’s January 18, 2023 “Motion for Extension of

Time to File Brief” is denied as moot.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

2 Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 3 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 28, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

TIMOTHY SUMPTER,

Petitioner - Appellee/Cross- Appellant,

v. Nos. 20-3186 & 20-3206

STATE OF KANSAS,

Respondent - Appellant/Cross- Appellee.

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NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Amicus Curiae.

_________________________________

Appeal and Cross-Appeal from the United States District Court for the District of Kansas (D.C. No. 5:19-CV-03267-JWL) _________________________________

Kurtis K. Wiard, Assistant Solicitor General (Derek Schmidt, Attorney General and Kristafer R. Ailslieger, Deputy Solicitor General, with him on the briefs), Office of Attorney General, Topeka, Kan