
USCA1 Opinion

	




        October 4, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.            _______     _____                                       _____                                         -2-            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.                 _________                                         -3-
