* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and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 Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

_______________________________

No.95-60155

_______________________________

DESMOND NUGENT,

Petitioner-Appellee,

VERSUS

STATE OF MISSISSIPPI and RICHARD MARTIN,

Interim Superintendent for the South Mississippi Correctional Institution,

Respondent-Appellants.

_____________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(1:93-CV-441-GR)

_____________________________________________________

May 29, 1996

Before WISDOM, GARWOOD, and JONES, Circuit Judges.

PER CURIAM: *

BACKGROUND

The petitioner, Desmond Nugent, was arrested in December 1987 and ch arged wi th

possession of cocaine. In January 1990, Nugent went to trial in Mississippi st at e court, was

convicted, and was sentenced to fifteen years in prison. Over the next two years, the state court

granted Nugent two out-of-time appeals and found itself having to appoint numerous attorney s to

represent Nugent because the appointed attorney s invariably failed to respond to his case, conflicted

out, or withdrew from the criminal defenders’ program. Nugent, however, was vigilant during this-2-

time, writing letters to all of his appointed attorney s and to the state asking for assistance in moving

his appeal forward. These efforts proved fruitless.

In September 1992, Nugent, apparently distraught over his inabilit y to appeal his conviction,

filed his first 28 U.S.C. § 2254 motion in federal cou rt . The dist rict court dismissed his motion

without prejudice for failing to exhaust state remedies. One year later, Nugent filed his second §

2254 motion with the district court, asking the court to reconsider i ts September 1992 rul i ng and

alleging specific constitutional violations. The State responded with a motion to dismiss for failure

to exhaust state remedies. Determining that the reco rd was insufficient to rule on the motion, the

district court ordered the parties to file supplem ent al briefs. During this time period, the court

appointed another new attorney for Nugent.

In November 1994, the State filed a supplemental brief as requested by the Court and asked

for a further extension of time to respond to the merits of the claim because the trial transcript had

not yet been prepared. The district court issued an order granting the State ten days to file its reply

brief after the transcript was finally prepared.

On February 17, 1995, the district judge called the Stat e’s attorney s to i nqui re about the

status of the case. The State filed a supplemental response on February 21, advising the court that

the p ro ceedings were transcribed, that the notice of appeal in the state courts had been filed by

Nugent’s at t orney, and that the delay was not wholly the cause of the State. The district court,

displeased with the State’s progress in this case, then issued an order on February 22 in which it

granted a conditional writ of release to Nugent, requiring the Mississippi Supreme Court to rul e on

Nugent’s case within 60 days or release Nugent at the expiration of that period.

The State filed a notice of appeal and a motion to stay judgment pending appeal, which the

district court denied. The State appealed t he denial of the motion to stay to another panel of this

Court, who denied the State’s request.

Under the o rder of the district court, the State should have released Nugent on April 23,

1995, because the Mississippi Supreme Court had not yet decided Nugent’s case by that date; in fact,1 S ee Simmons v. Reynolds

, 898 F.2d 865, 868 (2d Cir. 1990) (holding that although state prisoners do

not have a constitutional right to an appeal, when the state chooses to allow its prisoners to appeal, then due

process rights attach).

2 Id. at 869.

3 Cf. Harris v. Champion , 15 F.3d 1538, 1549 (10th Cir. 1994) (addressing the inordinate backlog in

the Oklahoma Public Defender system); Stubbs v. Leonardo

, 973 F.2d 167, 169 (3d Cir. 1992) (expressing

concern over “the pattern of state court appellate delays in criminal cases”); B rooks v. Jones , 875 F.2d 30,

32 (2d Cir. 1989) (stating that the Court “believe[d] it imperative to take some action toward the end that the

problem of lengthy delays in processing criminal ap peals in New York state courts will be addressed and

corrected by those courts).

-3- the Mississippi Supreme Court had not even set the briefing deadlines by that point. For reasons that

are not in the record, April 23 passed yet Nugent remained imprisoned. Having served the requisite

seven years and six months of his fifteen year sentence, Nugent was finally released on June 12, 1995,

on parole. In March 1996, Nugent’s attorney was permitted to file an out -o f-t ime brief with the

Mississippi Supreme Court, which he did.

The State now appeals the district court’s conditional writ of release to Nugent.

DISCUSSION

The district court determined that Nugent ha d exhausted his state remedies and that the

appellate delay constituted a violation of his due process rights, warranting the conditional writ of

release. 1 “Release from custody is an extraordinary remedy, especially in a delay-of-appeal case

where release would in effect nullify a state court conviction on grounds unrelated to the merits of

the case.” 2 The conditional release is best reserved fo r limit ed sit uations in which the state has

systemic problems in its public defender program that routinely lead to inordinate appellant delays 34 S ee Reynolds

, 898 F.2d at 869; see also Simmons v. Beyer

, 44 F.3d 1160, 1171 (3d Cir.) (holding that

the conditional writ is appropriate because the substantial appellate delay resulted in the destruction of the

prisoner’s trial record, rendering a review of the record impossible), cert. denied , 116 S. Ct. 271 (1995).

5 N ugent alleges several violations of his rights: lack of trial court jurisdiction, denial of a speedy trial,

denial of appeal as right, and ineffective assistance of counsel. None of these claims appear affected by the

passage of time since Nugent’s trial.

6 T o determine whether appellate delay gives rise to a due process claim, the court must consider several

factors: the length of delay, the reason for the delay, the defendant’s assertion of the right to appeal, and, most

importantly, the prejudice suffered by the defendant as a result of the delay. U nited States v. Bermea

, 30 F.3d

1539, 1569 (5th Cir. 1994), cert. denied , 115 S. Ct. 1113 and 115 S. Ct. 1825 (1995).

7 C f. Reynolds

, 898 F.2d at 868 (noting that the state appointed only one attorney for the prisoner and

that attorney never filed the prisoner’s appeal in the five years for which he was assigned to the case, despite

the protestations of the prisoner).

8 D espite our ruling in favor of the State, this Court is particularly troubled by Mississippi’s retention

of Nugent beyond April 23, 1995, signifying a flagrant disregard for the district court’s writ of release and this

Court’s opinion denying a stay of that writ pending this appeal. As a result, we caution the district court to

consi der Mississippi’s willingness to follow its orders when fashioning an appropriate remedy, though this issue

may best be handled in a civil suit.

-4- or when the substantial appellate de lay has rendered a review of the petitioner’s trial court record

impossible. 4 In the instant case, there is no evidence of such problems. 5

Next, we note that the district court has not fully explained how the delays were the fault of

the st at e, o ne o f the factors to be addressed when determining whether there is a due process

violation. 6 While it is true that Nugent has had the extreme misfortune of having numerous attorneys

appointed to represent him, it is not clear to us from the record that this situation is entirely the fault

of the state. 7 Under these circumstances, it was improper for the district court to grant Nugent a

conditional writ of release; rather, the district court should have considered other options, such as

taking the steps necessary to address the merits of Nugent’s claims or ordering the parties to file their

appellate briefs in the Mississippi Supreme Court within a specified period of time. Finally, we also

desire that the district court have the benefit of considering the developments subs equent to i ts

decision, namely the fact t hat Nugent’s appeal finally has began moving forward before the

Mississippi Supreme Court and that Nugent is no longer in custody. 8 In the light of the foregoing,

we VACATE the district court’s conditional writ of release and REMAND this case to the district

court to conduct further inquiry into this case and to fashion an appropriate remedy for Nugent.