222 F.3d 280 (7th Cir. 2000)
Elijah Moore,    Petitioner-Appellee,v.Ron Anderson, Superintendent,   Indiana State Prison,  Respondent-Appellant.
No. 99-1657
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 4, 1999Decided June 5, 2000

Appeal from the United States District Court  for the Northern District of Indiana, South Bend Division.  No. 96 C 665--Allen Sharp, Judge. [Copyrighted Material Omitted]
Before Manion, Kanne and Evans, Circuit Judges.
Kanne, Circuit Judge.


1
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.


2
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).


3
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).


4
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

5
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

6
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.


7
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.


8
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.


9
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.


10
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

11
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.


12
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.


13
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).


14
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.


15
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).


16
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

17
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.

