In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1657

Elijah Moore,

Petitioner-Appellee,

v.

Ron Anderson, Superintendent,
Indiana State Prison,

Respondent-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 96 C 665--Allen Sharp, Judge.


Argued November 4, 1999--Decided June 5, 2000




      Before Manion, Kanne and Evans, Circuit Judges.

      Kanne, Circuit Judge. In 1983, an Indiana state
court jury convicted Elijah Moore of four counts
of robbery and determined that he was a habitual
offender. The state trial judge sentenced Moore
to twenty years imprisonment on each robbery
count, with the terms to run concurrently, and
enhanced the sentence by thirty years in light of
the jury determination that Moore was a habitual
offender. Moore then embarked on a number of
direct appeals. Ultimately, Moore sought habeas
corpus relief under 28 U.S.C. sec. 2254 in regard
to his habitual offender enhancement.

      In his sec. 2254 petition, Moore claimed that
his state petitions for post-conviction relief
had been wrongly denied on procedural grounds
that were not adequate to support a judgment. The
district court denied Moore’s petition, but we
found that the Indiana state court had erred in
concluding that Moore’s petition for post-
conviction relief was barred by a procedural
default. We reached the merits of Moore’s claim
and determined that the state had not proved in
the correct sequence the elements underlying the
habitual offender determination. For this reason,
we reversed the district court’s denial of
Moore’s habeas corpus petition and directed that
on remand "it issue a writ granting Moore relief
under sec. 2254 regarding the imposition of
sentence upon Moore as an habitual offender."
Moore v. Parke, 148 F.3d 705 (7th Cir. 1998)
(Moore I).

      Nine days after we issued our decision in Moore
I, the United States Supreme Court issued Monge
v. California, 524 U.S. 721, 734 (1998), in which
the Court held that the Double Jeopardy Clause of
the United States Constitution does not apply to
noncapital sentencing proceedings. The state
promptly petitioned for rehearing seeking to
modify our opinion because it believed the
direction given in our opinion to the district
court did not permit Indiana to retry Moore. In
the petition for rehearing and the response
thereto the parties addressed both Monge and
whether a retrial would be barred by the Indiana
Constitution. Our denial of the state’s petition
for rehearing was without comment and therefore
included no mention of Monge or the state
constitutional issue. See Moore v. Parke, No. 97-
3357 (7th Cir. Aug. 19, 1998) (order denying
petition for rehearing).

      On remand to the district court, Moore argued
that our denial of the petition for rehearing
suggested that we found that Monge was
inapplicable to his case under the law of the
case doctrine and the non-retroactivity principle
enunciated in Teague v. Lane, 489 U.S. 288
(1989), which prohibits retroactive application
of new rules of criminal procedure in a
collateral attack. The state argued that Monge
allowed it to retry Moore’s habitual offender
determination and contended that our remand
allowed a writ to be granted with the condition
that the state retain prosecutorial authority to
retry the habitual offender count. The district
court attempted "studiously and carefully" to
follow the mandate that we provided, and in so
doing, the court determined that the mandate
"does not contemplate a retrial." Moore v. Parke,
No. 3:96cv0665 (N.D. Ind. February 23, 1999). The
district court determined that Monge constituted
an intervening change in the law. But relying on
the law of the case doctrine it found that it was
bound by our mandate. See id. (citing Ute Indian
Tribe of the Uintah & Ouray Reservation v. Utah,
114 F.3d 1513, 1520-21 (10th Cir. 1997)).
Therefore, the district court issued an
unconditional writ of habeas corpus with regard
to the imposition of sentence on Moore as a
habitual offender. The state appeals, arguing
that it should be allowed to retry Moore’s
habitual offender enhancement.

Analysis

      The state asserts that neither the law of the
case doctrine nor the non-retroactivity principle
of Teague bars the application of Monge as
relevant authority. The state also argues that
Monge provides authority for its contention that
it be permitted to retry Moore’s habitual
offender determination. For this reason, the
state requests that we vacate or modify the
unconditional writ issued by the district court.
The application of Monge or its foreclosure
because of the law of the case or other corollary
doctrines are questions of law, and when
considering a district court’s decision granting
or denying a writ of habeas corpus, we review de
novo questions of law. See Lieberman v.
Washington, 128 F.3d 1085, 1091 (7th Cir. 1997).

Law of the Case

      The district court found that the retroactive
application of Monge to the facts of this case
presented a "close question" of law and that if
it "were able to write on a clean sheet," it
might retroactively apply Monge. However, the
court felt constrained to apply the mandate
strictly, in deference to what it understood to
be our direction to provide an unconditional
grant of Moore’s petition. Because it found that
our unconditional mandate precluded the state
from retrying Moore and that our denial of the
state’s petition for rehearing constituted the
law of the case on the application of Monge, the
district court refused to grant Moore’s writ
conditioned on the right of the state to retry
his habitual offender enhancement.

      We commend the district court’s intention to
follow strictly our mandate. We also acknowledge
our reliance on the law of the case doctrine,
which protects parties "from the expense and
vexation attending multiple lawsuits, conserves
judicial resources, and fosters reliance on
judicial action." Montana v. United States, 440
U.S. 147, 153-54 (1979). Moreover, we understand
that "[t]he ’most elementary application’ of this
doctrine is that when a court of appeals has
reversed a final judgment and remanded the case,
the district court is required to comply with the
express or implied rulings of the appellate
court." Waid v. Merrill Area Public Schools, 130
F.3d 1268, 1272 (7th Cir. 1997) (citations
omitted). Other circuits call this corollary to
the law of the case the "mandate rule." See Ute
Tribe, 114 F.3d at 1520.

      However, the mandate is only controlling "as to
matters within its compass." Sprague v. Ticonic
Nat’l Bank, 307 U.S. 161, 168 (1939). On remand,
the district court retains the authority to
dispose of other issues not addressed. See id. To
determine what issues were actually decided by
the mandate, we require a "careful reading of the
reviewing court’s opinion." Creek v. Village of
Westhaven, 144 F.3d 441, 445 (7th Cir. 1998). The
reach of the mandate is coextensive with the
reach of our holding, so "observations or
commentary touching upon issues not formally
before the reviewing court do not constitute
binding determinations." Id. In Moore I, our
review of Moore’s petition for writ of habeas
corpus focused on the state’s proof at trial that
Moore was a habitual offender. We found that the
state failed to meet its burden of proof on
Moore’s habitual offender status, so we reversed
and directed the district court to grant the writ
to set aside the enhancement of his sentence.

      The district court inferred that because we
noted no conditions in directing the grant of
relief, it was then powerless to set a condition
for retrial when issuing the writ. This inference
is, no doubt, based on a premise that a district
court has no power to add conditions to an
unconditional mandate from this court. That is,
of course, true up to a point. However, as we
have discussed, the district court does have the
power to add conditions even to an unconditional
mandate when those conditions address matters
that were not within the compass of the mandate.
Put simply, the law of the case "does not extend
to issues an appellate court did not address."
Luckey v. Miller, 929 F.2d 618, 621 (11th Cir.
1991). Because neither party raised the question
of retrial, we did not address whether the state
should be permitted to retry Moore. Therefore,
our unconditional mandate to the district court
did not bring a determination of the double
jeopardy question within its compass.

      Moore contends, however, that our denial of the
state’s petition for rehearing, in which the
question of Monge’s applicability was briefed
extensively, constitutes a ruling from which law
of the case may be inferred. If that were the
case, our summary denial of the state’s petition
for rehearing might constitute an implied
expansion of the compass of our original mandate,
and it would justify the district court’s
conclusion that we intended a consideration of
Monge to be brought within our mandate. "Under
the law of the case doctrine, ’when a court
decides upon a rule of law, that decision should
continue to govern the same issues in subsequent
stages of the same case.’" United States v.
Thomas, 11 F.3d 732, 736 (7th Cir. 1993) (quoting
United States v. Feldman, 825 F.2d 124, 130 (7th
Cir. 1987)). However, because a summary denial of
a petition for rehearing does not explain the
bases for the denial, it is "insufficient to
confer any implication or inference regarding a
court’s opinion relative to the merits of a
case." Thomas, 929 F.2d at 622; see also United
States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995)
("The summary denial of the petition does not
indicate the court considered and decided the
issue presented by the government . . ."). Thus,
our summary denial of the state’s petition for
rehearing did not create law of the case nor did
it expand the compass of our original mandate.
For this reason, neither the law of the case nor
our mandate prohibited the district court from
applying Monge. In retrospect, however, it
certainly would have been helpful for all
concerned if we had briefly explained the basis
for our denial of the state’s petition for
rehearing.

Applicability of Monge

      Because we have found that the law of the case
does not bar the application of Monge, we will
address the state’s contention that Monge permits
the state to retry Moore. The state contends that
Monge should apply and that it should be
permitted to retry the elements of Moore’s
habitual offender enhancement. Moore responds
that Monge is inapplicable in light of the non-
retroactivity principle enunciated in Teague, 489
U.S. 288, and that even if Teague does not bar
the application of Monge, the Double Jeopardy
Clause of the Indiana Constitution may still bar
the state from retrying Moore.

      In Monge, the Supreme Court reviewed a decision
of the California Supreme Court, in which the
California Supreme Court held that the Double
Jeopardy Clause does not bar retrial of evidence
of prior convictions for the purposes of a
habitual offender sentence enhancement. See
Monge, 524 U.S. at 726; see also People v. Monge,
941 P.2d 1121 (Cal. 1997). In its analysis of the
California Supreme Court’s decision, the Supreme
Court noted that double jeopardy protections have
been inapplicable historically to sentencing
proceedings because the determinations at issue
"do not place a defendant in jeopardy for an ’offense.’"
Monge, 524 U.S. at 728; see also Bullington v.
Missouri, 451 U.S. 430, 438 (1981). The Court
also noted as a "’well established part of our
constitutional jurisprudence’ that the guarantee
against double jeopardy neither prevents the
prosecution from seeking review of a sentence nor
restricts the length of a sentence imposed upon
retrial after a defendant’s successful appeal,"
Monge, 524 U.S. at 730, which suggests by
implication that the Double Jeopardy Clause
should not bar the retrial of the factual
predicates for a sentencing enhancement. Finally,
the Court distinguished Bullington and Arizona v.
Rumsey, 467 U.S. 203 (1984), because those cases
dealt with capital sentencing issues, in which
the court recognized "an acute need for
reliability." Monge, 524 U.S. at 732. For these
reasons, the Court concluded that the Double
Jeopardy Clause did not preclude retrial of
evidence of prior convictions in the non-capital
sentencing context.

      Moore argues that because Monge created a new
rule of constitutional criminal procedure the
non-retroactivity principle of Teague should
apply, and the guarantee against double jeopardy
should still bar a rehearing. However, the
principle of non-retroactivity favors only the
state, on the rationale that "a State should not
be penalized for relying on ’the constitutional
standards that prevailed at the time the original
proceedings took place.’" Lockhart v. Fretwell,
506 U.S. 364, 372 (1993) (quoting Teague, 489
U.S. at 306). Following Lockhart, we have held
that "designed as it is to protect the state’s
interest in the finality of criminal convictions,
[the non-retroactivity principle] entitles the
state, but not the petitioner, to object to the
application of a new rule to an old case." Free
v. Peters, 12 F.3d 700, 703 (7th Cir. 1993).

      Moore asserts accurately that in this case the
state has no interest in preserving the finality
of the judgment, but this argument misunderstands
the nature of the non-retroactivity principle.
The principle favors the state’s interest in
finality when the state has based its conviction
in reliance on certain constitutional standards
but does not favor the habeas petitioner, who has
no such interest in finality. See Lockhart, 506
U.S. at 373. Moore claims to have an interest in
the finality of our previous judgment, but this
finality--and Moore’s interest in it--is
predicated on upholding a judgment that he gained
by overturning the finality of a previous
judgment. As such, the facts are similar to those
in Lockhart, and we find that the analysis of
that case controls. Therefore, the non-
retroactivity principle will not bar the state
from invoking Monge in support of its request to
retry Moore’s habitual offender enhancement.

      Monge holds that the Double Jeopardy Clause
will not restrict a state from retrying prior
conviction allegations in the non-capital
context. Moore does not contest that Monge
controls the facts of this case and that it would
allow the state to retry the habitual offender
enhancement to his sentence. However, Moore
insists that the Double Jeopardy Clause of the
Indiana Constitution may still bar a retrial.
Indiana courts are split as to whether the state
Double Jeopardy Clause offers protection in
addition to the protection offered by the United
States Constitution. Compare Russell v. State,
711 N.E.2d 545, 550 (Ind. Ct. App. 1999) (holding
that the Indiana Constitution provides
independent Double Jeopardy protection), with
Moore v. State, 691 N.E.2d 1232, 1236 (Ind. Ct.
App. 1998) (holding that the Indiana Double
Jeopardy Clause’s protection is coextensive with
the U.S. Constitution); see also Butler v. State,
724 N.E.2d 600, 602 n. 1 (Ind. 2000) (holding
that defendant waived argument that Indiana
Constitution provides more extensive protection
than U.S. Constitution); Richardson v. State, 717
N.E.2d 32, 48-49, 53 (Ind. 1999) (distinguishing
state double jeopardy analysis from federal
double jeopardy analysis).

      In its holding below, the district court opined
that if it had the authority, it likely would
have applied Monge and conditioned the grant of
Moore’s petition on the State’s right to retry
Moore. On remand the district court will have the
opportunity to condition the grant of Moore’s
writ in the way it had envisioned. In such a
circumstance, Indiana state courts, rather than
federal courts, will be in a position to rule on
the state constitutional law question. For this
reason, we decline to address the question
whether the Indiana Constitution will bar a
retrial of Moore’s habitual offender enhancement.

Conclusion

      We Vacate the district court’s grant of an
unconditional writ of habeas corpus and Remand the
case to the district court with directions to
issue a new writ granting Moore relief under sec.
2254 regarding the imposition of sentence upon
Moore as an habitual offender; provided, that the
State of Indiana shall have 180 days within which
to retry Moore as an habitual offender.
