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 ye ar 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 to2

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 cour t granted a

deadline extension until October 21, 1997. By October 23, 1997,

all but the trial transcript had been filed so the cour t 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 d ated 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 noted1 Mims obtained a certificate of appealability on April 18,

1998.

3 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 hi ndered 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 substant ial

retardation of the appellate process, including an excessive delay

in the furnishing of a transcription of testimony necessary for

completion of an appellate record.” R heuark v. Shaw

, 628 F.2d 297,

302 (5th Cir. 1980); s ee also United States v. Bermea

, 30 F.3d

1539, 1568 (5th Cir. 1994) (noting that a state can violate due4

process if it substantially del ays 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. S ee Barker v. Wingo

, 407 U.S. 514,

530, 92 S . Ct. 2182, 2192 (1972); S haw

, 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. I d. 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. S ee Barker

, 407 U.S. at 530, 92 S. Ct. at 2192

(“Until there is some delay which is presump tively prejudicial,

there is no necessity for inquiry into the other factors that go

into the balance.”). At least this prong of B arker should weigh

slightly in his favor based on the status of his appeal at the time

of filing his federal petition. We also assume a rguendo that Mims2 After the district court denied appel lant’s petition, the

Louisiana Fourth Circuit issued a briefing schedule, but the court,

p ursuant to Mims’s request, suspended the briefing schedule to

allow appellant’s counsel time to supplement the record further.

5 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 te stimony 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 rec eipt 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 prejudi ce 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.