Kenneth John Falcone, Petitioner-appellant, v. Terry Stewart, Director; Attorney General of the State Ofarizona, Respondents-appellees, 157 F.3d 1204 (9th Cir. 1998)

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U.S. Court of Appeals for the Ninth Circuit - 157 F.3d 1204 (9th Cir. 1998) Oct. 22, 1998

Kenneth John Falcone, Tucson, Arizona, pro se.

Dawn M. Northrup, Assistant Attorney General, Phoenix, Arizona, for respondents-appellees.

On Remand from the Supreme Court of the United States.

Before: FARRIS and TASHIMA, Circuit Judges, and STAGG, Senior District Judge.* 


Our judgment in Falcone v. Stewart, 120 F.3d 1082 (9th Cir. 1997), was vacated by the Supreme Court for further 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 


The Honorable Tom Stagg, Senior United States District Judge for the Western District of Louisiana, sitting by designation


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