Kenneth John Falcone v. Terry Stewart, Director Attorney General of the State of Arizona

157 F.3d 1204, 98 Cal. Daily Op. Serv. 7929, 98 Daily Journal DAR 11007, 1998 U.S. App. LEXIS 26868, 1998 WL 734395

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 1998
• Docket: 96-15755
• Status: Published

Opinion

ORDER

Our judgment in Falcone v. Stewart, 120 F.3d 1082 (9th Cir.1997), was vacated by the Supreme Court for farther consideration in light of Monge v. California, — U.S. -, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), and the case remanded to this court.

Our judgment was bottomed on the holding that Falcone’s resentencing violated the double jeopardy clause. See Falcone, 120 F.3d at 1087. In Monge, the Court squarely held that double jeopardy has no application in the noncapital sentencing context. — U.S. at-, 118 S.Ct. at 2253. In light of that holding, we now affirm the district court’s judgment denying Falcone’s petition for a writ of habeas corpus.

The mandate previously issued in this case is recalled and a new mandate shall issue affirming the judgment of the district court. 1

1 . Appellant’s motion to dismiss this appeal on the ground that his release pursuant to the writ of habeas corpus issued by the district court in compliance with the mandate rendered this appeal moot is denied. Appellant has since been returned to custody and is now serving the sentence reimposed in case No. CR-89-02205.