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[NOT FOR PUBLICATION]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.
__________

petition for

Petitioner Walter Johnson filed the instant

a writ

of habeas corpus

in 1993,

complaining

primarily

of

delay attending

criminal appeal in

the

state court.

progress

of his

In response, the

direct

district

court issued a conditional writ directing respondent (a state

official)

track.

to undertake

These

appointed

and

efforts

measures proved

the

the district

Subsequently,

the

the appeal

successful: new

Massachusetts

reinstate the appeal.

held,

to get

counsel was

Appeals Court

agreed

Once oral argument in the

court

dismissed the

Appeals

Court

back on

appeal was

petition as

vacated

to

moot.

petitioner's

conviction, and the Supreme Judicial Court (SJC) accepted the

case for further review.

To the extent we

appeal,

he

apparently

can decipher petitioner's arguments on

contends

that the

delay

here

was

sufficiently

protracted

so as

to

compel

reversal of

conviction and to necessitate his unconditional release

custody.

in

We disagree.

prejudice sufficient

rests,

to warrant

most importantly, on

the appeal or the

States
______

"Whether an appellate delay

v. Luciano-Mosquera,
________________

v. Beyer,
_____

a showing that

defense in the event of

1995), cert. denied, 116 S.

_____________

Simmons
_______

reversing

44

63

-2-

from

results

a conviction

it has impaired

retrial."

F.3d 1142,

1158 (1st

Ct. 1879 (1996);

F.3d 1160,

his

1170-71 (3d

United
______

Cir.

accord, e.g.,
______ ____

Cir.), cert.
_____

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

has

e.g.,
____

time to argue that the

appellate delay

impaired his ability to defend himself at retrial.

Hayes v.
_____

Alternatively,

Evans,
_____

in

the

70 F.3d

event

85,

86 (10th

petitioner's

Cir.

See,
___

1995).

conviction

is

ultimately affirmed by the SJC, the dismissal here is without

prejudice to

the filing of

any constitutional

underlying

the

Affirmed.
_________

that

were

in the district

district court

delay.

petition advancing

challenges petitioner might

conviction

present petition

a new habeas

in light of

raised

in

court but not

its ruling on

have to

his

petitioner's

resolved by

the issue of

-3-