Westfall

MEMORANDUM *

Westfall filed a petition in district court for habeas corpus relief. The petition was dismissed without prejudice for failure to exhaust state remedies. Westfall appeals, asking that exhaustion requirements be waived because the state criminal appellate process has been excessively delayed in violation of his right to due process. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision. We review the denial of a petition for writ of habeas corpus de novo. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc).

According to Coe v. Thurman, 922 F.2d 528 (9th Cir.1990), the governing factors in evaluating Westfall’s due process claim are “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. *21 at 531 (quoting Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972)) (internal quotation marks omitted).

Westfall filed a notice of appeal of his state criminal conviction in March, 2000. The briefs have now been filed in that appeal, but the appeal has not been decided. It is possible that this length of delay reaches the level of…