                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT



                                 No. 99-30355
                              (Summary Calendar)



GLORIA DEAN WILLIAMS,

                                                 Petitioner-Appellant,

versus

WARDEN LOUISIANA CORRECTIONAL
INSTITUTE FOR WOMEN,

                                                 Respondent-Appellee.

                            --------------------
               Appeal from the United States District Court
                   for the Western District of Louisiana
                                 (98-CV-129)
                            --------------------
                                June 1, 2000

Before POLITZ, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     We       granted     Petitioner-Appellant        Gloria    Dean    Williams,

Louisiana inmate # 72527, a certificate of appealability (COA) in

her appeal from the district court’s dismissal of her petition for

habeas corpus pursuant to Rule 9(a) of the Rules Governing § 2254

petitions. The issue for which COA was granted is whether the

respondent could show actual prejudice resulting from Williams’s

delay    in    bringing    her   claim   that   she    was     denied   effective

assistance of counsel because she failed to file a direct appeal.


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     In   focusing   on     Williams’s      delay   and   the    merits   of   her

ineffective assistance claim, the respondent has ignored that the

State, not the petitioner, bears the burden of showing prejudice

under Rule 9(a).      Walters v. Scott, 21 F.3d 683, 686 (5th Cir.

1994).     The    burden    is   on   the    respondent     to    “(1)    make   a

particularized showing of prejudice, (2) show that the prejudice

was caused by the petitioner having filed a late petition, and (3)

show that the petitioner has not acted with reasonable diligence as

a matter of law.”          Id. at 686-87 (original emphasis; internal

footnote omitted).         Alone, the mere passage of time is never

sufficient to constitute prejudice.           Id.

     Unlike the successful respondents in the cases on which our

respondent relies, it has here not supplied the affidavit of trial

counsel or any other evidence to support its allegation that it is

prejudiced   by    Williams’s     delay     in   bringing       her   ineffective

assistance claim.    The respondent does not submit that counsel has

no recollection of why a direct appeal was not filed; neither does

it submit that it is unable to obtain counsel’s affidavit.                Indeed,

as recently as December 8, 1998, the respondent was able to obtain

the affidavit of Williams’s trial counsel pertaining to the jury

selection process.     That affidavit makes no mention of Williams’s

claim that counsel failed to file a direct appeal.

     In the absence of respondent’s showing of prejudice caused by

the delay, the district court’s dismissal of Williams’s petition

under Rule 9(a) must be vacated and the case remanded for further

proceedings. The respondent will have the opportunity on remand to


                                       2
prove prejudice.   Walters, 21 F.3d at 687.      If the respondent

successfully shows prejudice, however, it will also have to show

that Williams’s delay in filing her habeas petition caused records

which would have supported her claim to be lost and that Williams’s

delay   in   bringing   her   ineffective   assistance   claim   was

unreasonable.

VACATED and REMANDED.




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