                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT
                              _______________

                                 No. 96-60153
                              Summary Calendar
                               _______________



                               DARILE JOHNSON,

                                                 Petitioner-Appellant,

                                    VERSUS


                     RAYMOND ROBERTS and MIKE MOORE,

                                                 Respondents-Appellees.

                        _________________________

             Appeal from the United States District Court
               for the Northern District of Mississippi
                            (4:96-CV-32-S-D)
                       _________________________

                                 July 1, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*



      Darile Johnson appeals the dismissal, for failure to exhaust

state remedies, of his petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254.           We vacate and remand for further

factual development.




      *
         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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
                                         I.

             Johnson is a Mississippi state prisoner whose appeal of

his conviction is still pending.              In January 1996, he filed this

federal habeas petition, alleging various constitutional challenges

to his state conviction.          He also contended that the Mississippi

Supreme Court had not yet decided his appeal and that the lengthy

(twenty-four months since conviction) delay he experienced was so

excessive as to waive the requirement that he exhaust his available

state remedies before seeking federal habeas relief.

      According to Johnson, the appeal record and the state’s brief

eventually were filed with the state supreme court and, in December

1994, his counsel filed a motion for oral argument.                        Johnson

averred that since that date, the Mississippi Supreme Court had not

decided his appeal, despite several letters from him complaining of

the delay.     Johnson also stated that the delay had not been due to

any negligence on his part.

      Before    service    of   process,      the   district    court   dismissed

Johnson’s     petition    without      prejudice    for   failure    to    exhaust

available     state    remedies,      stating   that   “[w]hile     petitioner’s

frustration with the time required for his appeal is understandable

it   is   neither     unusual   nor    inordinate.”       The   court     issued   a

certificate of probable cause (“CPC”) to appeal.1


      1
        On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of
1996, 142 Cong. Rec. H3305-01 (1996), which contains amendments to the habeas corpus
statutes, was signed into law. The amended 28 U.S.C. § 2253 requires a “certificate
                                                                 (continued...)

                                         2
                                        II.

      Johnson contends that the district court erred by determining

that the delay he has experienced in the Mississippi appellate

process was      not   unusual    or   inordinate.       Johnson    repeats     the

contentions that he has done nothing to cause the delay and that

the delay has been so excessive that it is sufficient to waive the

requirement that he exhaust his available state remedies before

filing for federal habeas relief.

      In general, before a state prisoner may seek federal habeas

relief,    he   must   exhaust    available     remedies.        See   28   U.S.C.

§ 2254(b).       The exhaustion requirement reflects federal-state

comity concerns.        Picard v. Connor, 404 U.S. 270, 275 (1971).

Exhaustion normally requires only that the federal claim was fairly

presented to the highest court of the state, either on direct

review or in a post-conviction attack. Carter v. Estelle, 677 F.2d

427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983).                   The

exhaustion doctrine does not apply, however, when the state system


      1
       (...continued)
of appealability,” rather than a CPC, for appealing the denial of a § 2254 petition.
At this time, issues of the retroactivity and interpretation of the amendments are
uncertain. Without an explicit statutory requirement that the amendments should be
applied to pending appeals, or a decision from this court interpreting the statute
as requiring such application, we assume that a district court’s order granting CPC
is still effective.

      The new statute also retains the provision that a § 2254 petition can be
granted, absent exhaustion, if “there is an absence of available State corrective
process” or if “circumstances exist that render such process ineffective to protect
the rights of the applicant.”     142 Cong. Rec. H3305-1, § 104, Section 2254
Amendments; 28 U.S.C. § 2254. Because there is no apparent change to the situations
in which exhaustion would not apply, we have applied existing law regarding
exhaustion waivers.

                                         3
inordinately and unjustifiably delays review so as to impinge upon

a petitioner’s due process rights.                Deters v. Collins, 985 F.2d

789, 795 (5th Cir. 1993).

       “In   determining    whether      a     delay   of   a    prisoner’s     appeal

violates due process, this court looks to the factors set forth in

Barker v. Wingo, 407 U.S. 514, 530 (1972).”                        Bailey v. Scott,

No. 94-10917, at 3 (5th Cir. May 24, 1995) (unpublished); see also

United States v. Bermea, 30 F.3d 1539, 1568-69 (5th Cir. 1994)

(citing Rheuark v. Shaw, 628 F.2d 297, 302-04 (5th Cir. 1980),

cert. denied, 450 U.S. 931 (1981)), cert. denied, 115 S. Ct. 1113,

and cert. denied, 115 S. Ct. 1824 (1995).                    The factors are the

length of the delay, the reasons for the delay, the defendant’s

assertion     of   his   right,    and   the     prejudice       to    the    defendant

occasioned by the delay.          Bailey, at 3.

       The   first   Barker   factorSSthe         length    of     the   delaySSis     a

threshold    requirement.         “Until       there   is   some      delay   which   is

presumptively prejudicial, there is no necessity for inquiry into

the other factors that go into the balance.”                    Barker, 407 U.S. at

530.     We have held that a fifteen-month delay in transcript

preparation in the state appellate process, Rheuark v. Wade, 540

F.2d 1282, 1283 (5th Cir. 1976); a sixteen-month delay in the

appellate process between completion and actual filing of the

record, Shelton v. Heard, 696 F.2d 1127, 1129 (5th Cir.), modified,

707 F.2d 200 (5th Cir. 1983); and a twenty-month delay in the state

                                           4
appellate process transcript preparation, Rheuark v. Shaw, 628 F.2d

at 302, are sufficient to waive the exhaustion requirement and to

constitute a deprivation of due process.          We also have considered

a one-year delay in the consideration of a state habeas corpus

petition, Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978), to

be an excessive delay waiving the exhaustion requirement.2

      Whether the delay is in the state direct appeal process or in

the   routes   of   post-conviction    relief   is   of   no   significance.

Rheuark, 540 F.2d at 1283.      One caveat is that petitioners who have

contributed to the excessive delay cannot complain of the delay

they caused, and, thus, will not be excused from meeting the

exhaustion doctrine.      Deters, 985 F.2d at 795.

      The Mississippi Supreme Court has confirmed that briefing in

Johnson’s appeal was completed on September 15, 1994.            The case is

now in the clerk’s office waiting to be placed on the docket, after

which that court will consider the case.             Cases are put on the

docket in the order in which their briefing schedules are com-

pleted, and Johnson’s case will be assigned to the docket when its

turn comes.    During this time, Johnson has filed a pro se appellate

brief that was carried with the case and a motion to amend that was

denied in February 1995, but apparently these filings have not

      2
        Additional cases in which we have found that delay in the state
proceedings have rendered the exhaustion requirement meaningless include a
seventeen-month delay in consideration of a habeas corpus petition by a state
court, St. Jules v. Beto, 462 F.2d 1365, 1366 (5th Cir. 1972); and a nineteen-
month delay by a state court in considering a defendant’s motion for review of
his conviction, Dixon v. Florida, 388 F.2d 424, 425-26 (5th Cir. 1968).

                                      5
delayed the appeal process.

     When Johnson filed his federal habeas petition, he had already

waited approximately sixteen months from the time briefing was

completed for his case to be placed on the docket for consideration

by the state supreme court.     It has now been approximately twenty

months since his case became eligible to be placed on the docket.

     The delay in considering Johnson’s appeal definitely appears

to fall within the range we have previously considered to be

inordinate and excessive for excusing the requirement to exhaust

state   remedies   before   filing   federal       habeas   petitions.   See

Shelton, 696 F.2d at 1129; Breazeale, 582 F.2d at 6.              There also

does not appear to be any evidence that Johnson has caused the

delay so as to preclude the waiver of the exhaustion requirement.

See Deters, 985 F.2d at 795.

     If, on the other hand, the delay is justifiable, there is no

reason to excuse the exhaustion requirement.            See Dixon, 388 F.2d

at 426 (remand for determination whether delays were justifiable;

if delays were justifiable, petition should be dismissed for

failure to exhaust state remedies).          Because the district court

dismissed Johnson’s petition for failure to exhaust state remedies

before service of his petition, there has been no opportunity for

factual development to determine whether the delay is justifiable.

     Accordingly, the judgment is VACATED and REMANDED for further

factual   development   regarding        whether    delay    in   considering


                                     6
Johnson’s appeal of his state conviction is justifiable.   If the

delays are not justifiable, the district court shall proceed to a

hearing on the merits of the habeas petition.    See FED. R. APP.

P. 34(a).




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