October 4, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2138
WALTER D. JOHNSON, JR.,
Petitioner, Appellant,
v.
PAUL DIPAOLO,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Cyr, and Boudin,
Circuit Judges.
Walter D. Johnson on brief pro se.
Scott Harshbarger, Attorney General, and Elisabeth J. Medvedow,
Assistant Attorney General, Criminal Bureau, on brief for appellee.
Per Curiam. Petitioner Walter Johnson filed the instant
petition for a writ of habeas corpus in 1993, complaining
primarily of delay attending the progress of his direct
criminal appeal in state court. In response, the district
court issued a conditional writ directing respondent (a state
official) to undertake efforts to get the appeal back on
track. These measures proved successful: new counsel was
appointed and the Massachusetts Appeals Court agreed to
reinstate the appeal. Once oral argument in the appeal was
held, the district court dismissed the petition as moot.
Subsequently, the Appeals Court vacated petitioner's
conviction, and the Supreme Judicial Court (SJC) accepted the
case for further review.
To the extent we can decipher petitioner's arguments on
appeal, he apparently contends that the delay here was
sufficiently protracted so as to compel reversal of his
conviction and to necessitate his unconditional release from
custody. We disagree. "Whether an appellate delay results
in prejudice sufficient to warrant reversing a conviction
rests, most importantly, on a showing that it has impaired
the appeal or the defense in the event of retrial." United
States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir.
1995), cert. denied, 116 S. Ct. 1879 (1996); accord, e.g.,
Simmons v. Beyer, 44 F.3d 1160, 1170-71 (3d Cir.), cert.
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denied, 116 S. Ct. 271 (1995); Cody v. Henderson, 936 F.2d
715, 719-22(2d Cir. 1991). No such showing hasbeen made here.
In the event petitioner is subjected to a new trial, he
remains free at that time to argue that the appellate delay
has impaired his ability to defend himself at retrial. See,
e.g., Hayes v. Evans, 70 F.3d 85, 86 (10th Cir. 1995).
Alternatively, in the event petitioner's conviction is
ultimately affirmed by the SJC, the dismissal here is without
prejudice to the filing of a new habeas petition advancing
any constitutional challenges petitioner might have to his
underlying conviction that were raised in petitioner's
present petition in the district court but not resolved by
the district court in light of its ruling on the issue of
delay.
Affirmed.
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