October 4, 1996         [NOT FOR PUBLICATION]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.
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            Scott Harshbarger, Attorney General, and Elisabeth J. Medvedow,
            _________________                        _____________________

        Assistant Attorney General, Criminal Bureau, on brief for appellee.





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                 Per Curiam.  Petitioner Walter Johnson filed the instant
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            petition for  a writ  of habeas corpus  in 1993,  complaining



            primarily  of  delay attending  the  progress  of his  direct



            criminal appeal in  state court.   In response, the  district



            court issued a conditional writ directing respondent (a state



            official)  to undertake  efforts  to get  the appeal  back on



            track.   These  measures proved  successful: new  counsel was



            appointed  and  the  Massachusetts  Appeals Court  agreed  to



            reinstate the appeal.   Once oral argument in the  appeal was



            held,  the district  court  dismissed the  petition as  moot.



            Subsequently,   the   Appeals   Court  vacated   petitioner's



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



            case for further review. 



                 To the extent we  can decipher petitioner's arguments on



            appeal,  he  apparently  contends  that the  delay  here  was



            sufficiently  protracted  so as  to  compel  reversal of  his



            conviction and to necessitate his unconditional release  from



            custody.  We disagree.   "Whether an appellate delay  results



            in  prejudice sufficient  to warrant  reversing  a conviction



            rests,  most importantly, on  a showing that  it has impaired



            the appeal or the  defense in the event of  retrial."  United
                                                                   ______



            States  v. Luciano-Mosquera,  63  F.3d 1142,  1158 (1st  Cir.
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            1995), cert.  denied, 116 S.  Ct. 1879 (1996);  accord, e.g.,
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            Simmons  v. Beyer,  44  F.3d 1160,  1170-71 (3d  Cir.), cert.
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            denied,  116 S. Ct. 271  (1995); Cody v.  Henderson, 936 F.2d
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            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  time to argue that the  appellate delay



            has  impaired his ability to defend himself at retrial.  See,
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            e.g.,  Hayes v.  Evans,  70 F.3d  85,  86 (10th  Cir.  1995).
            ____   _____     _____



            Alternatively,   in  the  event  petitioner's  conviction  is



            ultimately affirmed by the SJC, the dismissal here is without



            prejudice to  the filing of  a new habeas  petition advancing



            any constitutional  challenges petitioner might  have to  his



            underlying  conviction  that  were  raised   in  petitioner's



            present petition  in the district  court but not  resolved by



            the  district court  in light of  its ruling on  the issue of



            delay.



                 Affirmed.
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