UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30373
JEFFREY MIMS,
Petitioner-Appellant,
versus
JAMES M. LEBLANC, Warden; RICHARD P. IEYOUB,
Attorney General, State of Louisiana,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
May 13, 1999
Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Jeffrey Mims is a prisoner in a Louisiana state
penitentiary serving a forty year sentence for manslaughter. He
filed the present habeas corpus petition claiming that the
inordinate delay in his direct appeal, which has lingered in a
Louisiana appellate court for two years, has violated his due
process rights.
BACKGROUND
Mims was found guilty by a Louisiana jury of manslaughter
on April 20, 1996 and was subsequently sentenced to a forty year
term of imprisonment. He appealed to the Louisiana Fourth Circuit
Court of Appeals on February 5, 1997 after obtaining permission to
file an out-of-time appeal. The record was then lodged in the
appellate court; however, it did not contain the trial transcript
or the transcript of the multiple bill hearing. Therefore, on July
21, 1997, the Louisiana appellate court ordered the trial court to
supplement the record with the missing transcripts within 30 days.
The order was not complied with, however, so the court granted a
deadline extension until October 21, 1997. By October 23, 1997,
all but the trial transcript had been filed so the court again
ordered the record to be supplemented and granted another 30 day
deadline. The order concluded with a warning that “[f]ailure to
comply with this order will result in commencement of contempt
proceedings.” Because the October order was only partially
complied with, the appellate court, on January 30, 1998, again
ordered the trial court to transcribe and file the remaining
portions of the trial transcript, placing an April 21, 1998
deadline.
In the interim, on December 30, 1997, appellant filed the
present federal habeas corpus petition, arguing that the delay in
preparing his trial transcript constituted a violation of his due
process rights. The district court denied Mims’s petition, by
order dated March 13, 1998, for two reasons. First, the court
stated that the delay, while unfortunate, was “not so extreme or
unreasonable as to violate due process.” Second, the court noted
2
that Mims “has not alleged that he was in any way prejudiced by
this delay.”
Mims appeals the district court’s denial,1 arguing that
he is being constructively denied due process by the delay in
preparing the record for appellate review. He argues that the
district court erred in finding that he did not raise the issue of
prejudice. He contends here, as he did in the district court, that
he is prejudiced because, due to the missing portions of the
record, his appellate counsel, who did not represent him at trial,
has been hindered in her ability to effectively appeal his
conviction.
The state’s appeal brief to this court notes that the
full testimonial record was submitted to the Louisiana appellate
court before July 1998 and that briefing continued to be suspended
pending the completion of transcript on procedural matters.
DISCUSSION
“[D]ue process can be denied by any substantial
retardation of the appellate process, including an excessive delay
in the furnishing of a transcription of testimony necessary for
completion of an appellate record.” Rheuark v. Shaw, 628 F.2d 297,
302 (5th Cir. 1980); see also United States v. Bermea, 30 F.3d
1539, 1568 (5th Cir. 1994) (noting that a state can violate due
1
Mims obtained a certificate of appealability on April 18,
1998.
3
process if it substantially delays the appellate process it
provides for convicted criminal defendants). To determine whether
a state’s delay in processing a prisoner’s appeal violates due
process, we have adopted the four factors applied by the Supreme
Court in pre-trial delay cases. See Barker v. Wingo, 407 U.S. 514,
530, 92 S. Ct. 2182, 2192 (1972); Shaw, 628 F.2d at 303. Those
factors include 1) length of delay; 2) the reason for the delay; 3)
the defendant’s assertion of his right; and, 4) the prejudice to
the defendant. Id. at 303 n.8. The most important factor,
prejudice to the defendant, see Bermea, 30 F.3d at 1569, focuses on
three types of potential prejudice that may result from appellate
delay: 1) extended oppressive incarceration pending appeal; 2) the
anxiety and concern of the convicted party awaiting the outcome of
the appeal; and, 3) impairment of the convicted party’s grounds for
appeal or the viability of his defenses in the event of retrial.
Shaw, 628 F.2d at 303 n.8.
It is not at all clear that Mims met the threshold
requirement of demonstrating an undue length of time while awaiting
a chance to appeal. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192
(“Until there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that go
into the balance.”). At least this prong of Barker should weigh
slightly in his favor based on the status of his appeal at the time
of filing his federal petition. We also assume arguendo that Mims
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satisfied the second and third criteria under Barker. These points
are, however, not enough; Mims must also satisfy the prejudice
prong.
The only prejudice alleged by Mims is his counsel’s
inability to fully prepare for his direct appeal. According to
Mims, his appellate counsel did not represent him at trial and,
without the trial transcript, cannot evaluate the testimony and
evidence presented at trial. This is not the sort of prejudice
that rises to a due process deprivation. The Louisiana appellate
court has repeatedly ordered the whole transcript and has reduced
any potential prejudice pending receipt of a complete record by
delaying the briefing schedule.2 Mims’s counsel will thus have
ample time to review the record and file an effective appeal. The
potential prejudice alluded to by Mims has been minimized or
eliminated.
We hold that although the ongoing delay has been
unfortunate, the prejudice alleged by Mims is insufficient to
qualify as a due process violation. Since he has alleged no other
prejudice, we AFFIRM the denial of habeas corpus relief.
AFFIRMED.
2
After the district court denied appellant’s petition, the
Louisiana Fourth Circuit issued a briefing schedule, but the court,
pursuant to Mims’s request, suspended the briefing schedule to
allow appellant’s counsel time to supplement the record further.
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