concurring:
However one may have viewed Malone’s Johnson v. Mississippi claim — and I for one thought it sufficiently colorable to permit a district court to hear it out before being rendered moot by his execution1 — we passed through that gate when this court refused to stay Malone’s transfer to Missouri authorities. Now that he is there, we have, as the opinion quite properly points out, no jurisdiction over either Malone, his custodian, or the courts of the Eight Circuit so as to grant the relief he seeks.
. I read Johnson to require the sentencing court to re-visit the issue where the original sentence was based, even in part, on a conviction which is later invalidated. 486 U.S. at 584-85, 108 S.Ct. 1981. Although success in his California habeas proceeding would still leave a separate aggravating circumstance (murder for pecuniary gain) in place, the Missouri Supreme Court appears not to have passed on the validity of that aggravating factor in upholding Malone’s death sentence. See State v. Malone, 694 S.W.2d 723, 727-28 (Mo.1985).