Michael Whittlesey filed a pretrial habeas petition seeking relief from a pending state court prosecution for murder on double jeopardy grounds. The district court dismissed the petition without prejudice for failure to exhaust state remedies. Whittlesey filed a motion to set aside the judgment and subsequently appealed before the district court acted on his motion. After the appeal was filed, the district court vacated its order dismissing the action and ordered the Respondents to show cause why the motion should not be granted.

A case must remain alive throughout the course of appellate review. 13A Charles A. Wright, et al., Federal Practice and Procedure § 3533.10 (West 1984 & Supp. 1993). The relief sought by Whittlesey, the vacation of the district court's order dismissing his petition for failure to exhaust state remedies, was granted by the district court. Whittlesey's request has been granted.

Accordingly, we deny a certificate of probable cause and dismiss the appeal as moot. We deny Whittlesey's Motion for Nunc Pro Tunc Remand. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.