Full opinion text
EBEL, Circuit Judge. These consolidated habeas appeals, which come to us after our remand in Harris v. Champion, 938 F.2d 1062 (10th Cir.1991) (Harris I), require us to revisit the problem of appellate delay in the Oklahoma criminal justice system. In Harris I, we ruled that the United States District Court for the Northern District of Oklahoma should have excused an Oklahoma prisoner’s failure to exhaust his state remedies before seeking federal habeas relief in light of extensive delay by the state public defender in filing an opening brief in the prisoner’s direct criminal appeal. 938 F.2d at 1065-66, 1071. We remanded the action to the district court and directed it to investigate the possibility of systematic delay in the filing of briefs by the Oklahoma Appellate Public Defender System (Public Defender). Id. at 1071. In a subsequent opinion, we expanded the scope of inquiry on remand to include a consideration of the entire criminal appellate process in Oklahoma insofar as it contributes to delay in deciding direct criminal appeals of indigent defendants. Hill v. Reynolds, 942 F.2d 1494, 1496-97 (10th Cir.1991). We now consider the results of the district court’s rulings on remand. In this opinion we are called upon to address several issues arising out of the delay in processing petitioners’ direct criminal appeals, including whether petitioners must exhaust their state remedies before seeking habeas relief in federal court and whether the delays in the state appellate process have violated petitioners’ rights to due process, equal protection, or effective assistance of counsel. The record before us shows that many of these petitioners, all of whom are indigent and were represented by the Public Defender in their direct criminal appeals, had to wait three or more years before a brief was filed on their behalf in their respective direct criminal appeals. Some petitioners also experienced delays elsewhere in the appellate process. The following is a brief synopsis of our opinion, which begins with the issue of exhaustion. We conclude that there is a rebut-table presumption that the State’s process is not effective and, therefore, need not be exhausted, if a direct criminal appeal has been pending for more than two years without final action by the State. This two-year presumptive period is not inflexible: the particular circumstances of a case may warrant excusing exhaustion after a delay of less than two years as, for example, when the length of the sentence is considered or when there is an obvious and massive breakdown in the procedural development of the appeal; alternatively, circumstances may warrant refusing to excuse exhaustion even after a delay of more than two years. Next, we consider whether appellate delays also gave rise to independent due process violations. We apply the four-part balancing test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972), and examine the length of the delay, the reason for the delay, whether the petitioner asserted his or her right to a timely appeal, and whether the petitioner experienced any prejudice as a result of excessive delay. First, we agree with the district court’s conclusion that delay in finally adjudicating a direct criminal appeal beyond two years is presumptively excessive. Again, this two-year presumptive period is not inflexible; delay of less than two years may be excessive in some cases and delay of more than two years may not be excessive in other cases. Generally, however, the longer delay in the appellate process extends beyond two years, the less showing a petitioner must make on the other parts of the balancing test, including prejudice resulting from the delay. Second, we conclude that the reasons the State has offered for the delays experienced by petitioners — underfunding and, possibly, mismanagement of resources — are not constitutionally sufficient to justify excessive delay. Third, we conclude that absent a showing that a petitioner affirmatively sought or caused delay in adjudicating his or her appeal, a petitioner sufficiently asserted his or her right to a timely appeal by filing a federal habeas petition seeking relief from appellate delay by the State. Finally, we conclude that although prejudice may be presumed if appellate delay is sufficiently excessive, ordinarily a petitioner must make some particularized showing of prejudice to establish a due process violation. Prejudice arising from excessive appellate delay may take any of three forms: oppressive incarceration pending resolution of the appeal; anxiety and concern pending resolution of the appeal; and impairment of the grounds for appeal or the grounds for a retrial in the event the petitioner’s conviction is reversed. Because we are concerned only with prejudice arising from excessive delay, the particularized showing must relate to events that occurred during the period of delay that was excessive. The most significant form of prejudice, and often the most difficult to prove, is prejudice to the grounds for appeal or to the grounds for defense in the event of a retrial. As a precondition to establishing the latter, a petitioner must assert a colorable state or federal claim that would warrant a reversal and retrial. ■ Likewise, as a precondition to establishing either oppressive incarceration or anxiety and concern pending resolution of the appeal, a petitioner generally must assert a colorable claim that would warrant a reversal of his or her conviction or a reduction in sentence that would entitle the petitioner to immediate release. Because the district court has not yet conducted the individualized factual inquiry necessary to apply the Barker balancing test to each petitioner, we remand the due process claims to the district court for further development. Likewise, although we recognize that the Equal Protection Clause may be implicated if indigent petitioners face substantial delays in adjudicating their direct criminal appeals that petitioners who can afford to retain counsel do not face, we cannot review petitioners’ equal protection claims on the factual record before us. Therefore, we must remand these claims to the district court, as well. Turning to petitioners’ claims for ineffective assistance of counsel, we conclude that excessive delay in filing an appellate brief may violate a petitioner’s right to effective counsel. The violation ends, however, once the brief is filed, and unless the delay affected the outcome of the appeal itself, the past violation is not redressable through a habeas action. Therefore, only when a brief has yet to be filed can a petitioner obtain habeas relief for ineffective assistance of counsel resulting from excessive delay in filing an appellate brief. Finally, we address two issues that do not relate to delay in the state appellate process. The first concerns the refusal of Judge Brett, one of the members of the district court panel that issued the rulings subject to appeal, to recuse himself from the habeas claims despite his uncle’s presence on the Oklahoma Court of Criminal Appeals until the uncle’s death in early 1993. We conclude that Judge Brett abused his discretion in failing to recuse himself and that he should not participate in any further proceedings relating to petitioners’ claims. We further conclude, nonetheless, that Judge Brett’s failure to recuse himself was harmless error under the particular circumstances presented here and, therefore, we may review the merits of the district court’s rulings. Lastly, we conclude that the district court did not abuse its discretion in refusing to award petitioners interim attorney fees on the ground that the fee request was premature. 1. HISTORICAL & PROCEDURAL BACKGROUND In 1981, following a two-year pilot project, Oklahoma instituted its first statewide system of public defenders. Before that time, in all but Tulsa and Oklahoma Counties, indigent criminal defendants were represented solely by appointed members of the private bar. The Oklahoma Appellate Public Defender System was given responsibility for appeals by all indigent defendants except those in Tulsa and Oklahoma Counties, who continued to be represented by county public defenders. Except for cases involving conflicts of interest, the Public Defender had no authority to refuse cases assigned to it by the courts. Beginning in the mid-1980s, the Public Defender was assigned a steadily increasing number of felony appeals. This increase in caseload was not met with a corresponding increase in funding and staffing, however, and a backlog of unbriefed cases began to develop. With only five attorneys briefing noncapital cases, the Public Defender fell further and further behind. At the end of fiscal year (FY) 1986, the Public Defender had a total of 367 unbriefed cases. By the end of FY 1989, that number had risen to 705. In an effort to maximize the use of its limited resources, the Public Defender implemented a “first-in, first-out” policy, pursuant to which the oldest cases were briefed first. The Public Defender also began seeking lengthy extensions from the Oklahoma Court of Criminal Appeals on a routine basis. The Public Defender would ask for an initial extension of 360 days to be followed, if necessary, by subsequent requests for extensions of 180 days or less. The Oklahoma Court of Criminal Appeals ordinarily granted these extensions. Although the Oklahoma Court of Criminal Appeals was distressed by the Public Defender’s inability to handle the number of cases assigned to it, the court felt it had no power to remedy the situation directly. In response to a mandamus petition by an indigent criminal defendant who sought an order directing the Public Defender to file appellate briefs in his two cases with no further delays, the Oklahoma Court of Criminal Appeals regretfully commented: It is obvious that the office is understaffed to handle the number of appeals that are presently being handled by the office but due to the lack of funding by the State, the office is apparently doing the best that they can under the circumstances. We are powerless to cure this problem. It can only be cured by the legislature through the use of its budgetary powers. Petitioner is not entitled to have his appeal handled prior to others who are in similar circumstances and have been delayed even longer. Mcmous v. State, 797 P.2d 1005, 1005-06 (Okla.Crim.App.1990). Enter Anthony Jerome Harris. Harris was sentenced on September 29, 1988, and the Public Defender was appointed to represent him on appeal. On April 16, 1990, in response to his inquiry, the Public Defender sent Harris a letter stating: ‘“It will be at least 3 years before we are able to file your brief with the court.’ ” Harris I, 938 F.2d at 1064 (quoting Letter from Public Defender to Harris of 4/16/90). Believing that he should not have to wait that long to obtain a review of his conviction and sentence, Harris filed a habeas petition in federal district court and argued that the anticipated delay in adjudicating his direct criminal appeal should excuse his failure to exhaust his state remedies. By the time we issued our opinion in Harris I on June 17, 1991, almost three years had passed since Harris’ sentencing and the Public Defender had yet to file a brief on his behalf. We concluded that the briefing delay, which was authorized by the numerous extensions granted by the OMahoma Court of Criminal Appeals, was attributable to the State and was not justified. Therefore, we excused Harris from exhausting his state remedies before proceeding in federal court. We also noted that the delay raised potential independent violations of Harris’ constitutional rights, namely the right to equal protection, the right to due process, and the right to effective assistance of counsel. We reversed the district court’s dismissal of the habeas petition for failure to exhaust and, in light of the problems encountered by Harris and other OMahoma habeas petitioners who had raised the issue of delay to this court, we directed the district court on remand to consider this petitioner’s claims within the context of the systemic operations of the [Public Defender], Once the constitutional scope of the problem is known, the district court should consider what relief is appropriate for this petitioner as well as such systemic relief, if any, as may be needed to prevent any ongoing constitutional violations that may be occurring as a result of the inability of the [Public Defender] timely to prepare appeals for [its] indigent clients. Harris I, 938 F.2d at 1071 (footnote omitted). Further, we instructed the district court (1) to consolidate, to the extent possible, any other habeas cases pending in the Northern District of OMahoma that raised a constitutional challenge to the delay by the Public Defender in filing briefs in direct criminal appeals and to coordinate its review of those petitions with the review of similar petitions by the courts in the Western and Eastern Districts of OMahoma; (2) to “conduct a full hearing, as expeditiously as possible, into possible systemic delays of the [Public Defender] in preparing and filing appellate briefs for [its] indigent clients;” (3) to make “detailed findings of fact and conclusions of law and ... enter orders specifically addressing and remedying any constitutional violations that may be found;” and (4) “to appoint experienced counsel to represent the petitioners” in the collective cases. Id. at 1071, 1073. Two months later, we considered an appeal by another state habeas petitioner who was represented by the Public Defender in his direct criminal appeal. The opening brief there was not filed until two years and nine months after the notice of appeal. Hill, 942 F.2d at 1495. At the time we issued our decision, Hill’s appeal had been pending three years and four months with no decision by the OMahoma Court of Criminal Appeals. Hill contended that the delay in adjudicating his appeal excused his failure to exhaust state remedies and violated his right to due process. Based on our decision in Harris I, we reversed the district court’s dismissal of Hill’s habeas petition for failure to exhaust. On remand, we instructed the district court to consolidate Hill’s habeas action with that of Harris for hearing. We further instructed the district court to consider the period both before and after the Public Defender filed its brief and to determine “what part of the whole period of delay caused by the state may have violated Hill’s right to due process.” Id. at 1496-97. We thereby expanded the scope of inquiry on remand to excessive delay in the entire Oklahoma criminal appellate system. During this time, sweeping changes were taking place in Oklahoma’s public defender system. In June 1990, the Oklahoma Supreme Court ruled that Oklahoma’s system for appointing and compensating trial counsel for indigent defendants was unconstitutional. State v. Lynch, 796 P.2d 1150, 1159 (Okla. 1990). In its 1991 session, the Oklahoma legislature responded to the Lynch decision by overhauling the entire indigent defense system, both at the trial and appellate levels. The Oklahoma Indigent Defense Act, Okla. Stat. tit. 22, §§ 1355-68, which took effect on July 1, 1991, created the Oklahoma Indigent Defense System, and assigned it the responsibility of providing both trial and appellate counsel, as well as counsel on capital post-conviction matters, for indigent defendants in all but Tulsa and Oklahoma Counties. The legislature also authorized the Public Defender to hire two more attorneys to handle noncapital felony appeals. Pursuant to our remand order in Harris I, in July 1991, judges in the three federal districts in Oklahoma began identifying pending habeas cases that raised the issue of delay by the Public Defender and transferring them for hearing to the then-Chief Judge of the Northern District of Oklahoma, who was designated to sit in all three judicial districts. In January 1992, the district court appointed counsel to represent the petitioners in these cases (the Hams group), which at that time numbered sixteen. On February 28, 1992, the petitioners in the Harris group, which then consisted of thirty habeas cases, presented the court with reams of statistical and other data gathered from the Public Defender, the Oklahoma Court of Criminal Appeals, and the Attorney General. This evidence showed that for non-capital felony appeals filed in 1989, the Public Defender filed only three percent of its briefs within six months of the date they were due; fifty-six percent of its briefs were at least three years late; and thirty-one percent of its briefs had yet to be filed by the beginning of 1992. Almost all the Public Defender briefs due in noncapital felony appeals filed in 1990 and 1991 had yet to be filed by the beginning of 1992. During much of the operative period, therefore, an indigent appellant could expect a delay of two to four years before his or her appellate brief would be filed. The Public Defender was not the only entity having problems managing its caseload, however. The Oklahoma Court of Criminal Appeals also had a steadily growing backlog of cases. Each year the court was struggling to dispose of the cases pending from the previous year and was making virtually no progress on the new cases filed that year. At the end of FY 1989, there were 1,148 undecided cases pending before the Oklahoma Court of Criminal Appeals; a year later, there were 1,407 undecided cases pending. Even the Attorney General was beginning to slip. Data collected from the Oklahoma Court of Criminal Appeals showed that although the Attorney General filed almost all her briefs within six months of the due date, starting in 1987, there was “a clear trend of a decreasing number of briefs timely filed.” R., Doc. 27, Ex. 3(b) at 12. It was clear from the evidence presented that the appellate criminal justice system in Oklahoma was in a crisis. In the spring of 1992, the Oklahoma legislature began taking steps to alleviate the crisis. It appropriated $400,000 for the Public Defender to use to contract with private attorneys to handle noncapital felony appeals on which the Public Defender had been appointed. As a result, the Public Defender contracted out approximately 176 of its cases that spring. In the fall, the Oklahoma Court of Criminal Appeals also took steps to speed up the appellate process. The court adopted a summary opinion format to be used in all cases that would not be published. By reducing the amount of legal analysis and discussion set forth in its unpublished opinions, the court eliminated lengthy conferences concerning the precise wording of the opinion, as well as the need for separate' opinions when judges concurred in the outcome but not in the analysis. Meanwhile, the petitioners in the Harris group, which by then had grown to 108 habe-as cases, increased their pressure on the State by filing a supplemental and amended complaint that named as defendants the State of Oklahoma, the Oklahoma Court of Criminal Appeals and its individual members, the Public Defender and its board members and administrative officers, as well as all the Oklahoma wardens, among others. The complaint, filed in July 1992, asserted against all the named defendants both habeas claims and claims for damages under 42 U.S.C. § 1983. The Harris petitioners also filed a motion for a preliminary injunction, seeking to enjoin the Oklahoma Court of Criminal Appeals from granting any further extensions of time to the Public Defender, and a motion for partial summary judgment, seeking the release of those petitioners who had been, or reasonably could be expected to be, in custody for 11.7 months or longer without receiving a final adjudication of their appeal. The district court held a hearing on the pending motions on October 15, 1992, by which time the Harris group had grown to 193 habeas cases. The court noted at the outset that all the parties appeared to agree that delays in the Oklahoma criminal appellate system had risen to the level of constitutional violations, and it informed the parties that it rejected the Attorney General’s position that only the Oklahoma legislature could provide a remedy for those constitutional violations. The court said it, too, could provide a remedy. The Public Defender recommended that the court stay its hand because the legislature had appropriated more money for the Public Defender to contract out its cases, and the Public Defender intended to award "contracts in an additional 354-400 cases thé next morning. The contracts would require all opening briefs to be filed on or before April 30, 1993. The Public Defender stated that once these cases were contracted out to private counsel, the Public Defender could “maintain brief filings on a current basis within the statutor[il]y allotted periods.” Tr. 10/15/92 at 37. Counsel for the Oklahoma Court of Criminal Appeals also suggested that the court wait six months to see if the clog in the system would resolve itself. When questioned about appropriate remedies, counsel argued that while release of petitioners during the period of excessive appellate delay might be an appropriate remedy, it would have to be considered on a case-by-case basis. The Attorney General, in turn, also argued that the propriety of any remedy depended on the individual circumstances of each petitioner. At the conclusion of the hearing, the court noted that, although in the usual situation it would approach petitioners’ claims on an individual basis, in light of the unusual circumstances presented, it proposed the following possible remedy: to release any petitioner whose appeal had not been fully briefed and submitted to the Oklahoma Court of Criminal Appeals for decision within fourteen months of the date of conviction. Each petitioner would be released on his or her personal recognizance until the Oklahoma Court of Criminal Appeals issued its opinion; the State could apply for special terms and conditions of release in individual cases. The court gave the parties until October 23 to comment on the proposal and indicated it would issue a ruling shortly thereafter. Unfortunately, no ruling ever appeared. Beginning in January 1993, various Harris group petitioners, who were anticipating release, began filing mandamus petitions with us seeking a ruling by the district court. By the end of February, there were seven such mandamus petitions pending, including one filed by counsel on behalf of all the Harris group petitioners. On February 18, 1993, on motion of the Chief Judge of the United States District Court for the Northern District of Oklahoma, approved by the Chief Judges of the Western and Eastern Districts, the Chief Judge of this court entered an order designating a three-judge district court panel to adjudicate common issues of law and fact in all the habeas cases alleging delay in the adjudication of direct criminal appeals in Oklahoma. The panel, which was composed of one judge from each of the three federal districts in Oklahoma, was formed in an effort to resolve uniformly and expeditiously the common issues arising in the approximately 275 habeas cases that by then made up the Harris group. By order entered March 26, 1993 in the mandamus proceedings, we directed the district court panel to show cause why it should not be ordered, among other things, “to enter findings of fact and conclusions of law in the Harris cases insofar as those cases seek habeas relief because of delays by the [Public Defender] in preparing and filing briefs in petitioners’ direct criminal appeals” no later than May 10, 1993; and “to enter findings of fact and conclusions of law in the Harris cases insofar as those cases seek habeas relief because of delays by the [Attorney General] or the [Oklahoma Court of Criminal Appeals]” no later than September 10, 1993. Harris v. United States Dist. Ct., Nos. 93-527, et al., at 7-8 (10th Cir. Mar. 26, 1993) (unpublished order). We also suggested that the district court certify those rulings for immediate appeal pursuant to Fed.R.Civ.P. 54(b). In its response to the show cause order, the district court indicated that it had no objection to meeting the deadlines set forth in the show cause order. Therefore, on April 22, 1993, we entered a mandamus order directing the district court to enter the findings and conclusions requested in our show cause order and we also instructed the court to consider the issue of cumulative delay in its ruling due September 10. On April 1, 1993, the Harris group petitioners filed a motion to disqualify two of the three members of the district court panel. Both motions were orally denied at a status conference on April 6, with the exception that Judge Thomas R. Brett, whose uncle was a member of the Oklahoma Court of Criminal Appeals until his death three months earlier, agreed to recuse on any claims for damages. At an evidentiary hearing on April 9, the district court said it would grant respondents’ motion to sever from the Harris group twenty-six habeas cases by petitioners who were not represented by the Public Defender in their direct criminal appeals. The court also said that it would close the Harris group as of that date and any subsequent habeas petitions raising the issue of appellate delay would be considered on an individual basis. As of April 9, 284 habeas petitions that raised the issue of appellate delay in the Oklahoma criminal justice system had been filed by criminal defendants represented by the Public Defender. On May 6, 1993, the district court entered its findings of fact and conclusions of law concerning delay by the Public Defender and certified its ruling as final for purposes of appeal pursuant to Rule 54(b). Based on the Rules of the Oklahoma Court of Criminal Appeals, the district court concluded that an appellate process that took up to sixteen months from the filing of the notice of appeal through the filing of appellate briefs “would satisfy constitutional concerns.” R., Doc. 143 at 21-22. In light of this standard, the court concluded that “there has been inordinate delay attributable to [the Public Defender] in the filing of most of the appellant briefs herein. This delay has thus been systemic.” Id. at 22. The court determined, however, that to decide whether the inordinate delay by the Public Defender gave rise to any independent due process violations, it would have to balance the factors set forth in Bark er v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191, which would require the court to consider each habeas petitioner’s case individually. The court said it would defer this individual inquiry until after it had entered all the rulings required by our mandamus order of April 22. The court also deferred any rulings on the equal protection and ineffective assistance of counsel issues until it conducts the individual inquiries on due process. The court further held that any habeas petitioner whose direct criminal appeal had been either affirmed or reversed with prejudice to retrial was not entitled to habeas relief as a result of delay in the appellate process. Finally, the court held that in the future, habeas petitioners would have to exhaust the issue of delay in the Oklahoma Court of Criminal Appeals before raising it in federal court. Petitioners filed their notice of appeal from the district court’s order on May 28. In August, the parties submitted documentary and testimonial evidence to the court concerning delays by the Attorney General and the Oklahoma Court of Criminal Appeals, as well as cumulative delays in the system. Among other things, the court was advised that two pieces of legislation went into effect on July 1 that would speed the appellate process. The first act established an Emergency Appellate Division of the Oklahoma Court of Criminal Appeals that can be activated whenever more than 100 noncapital felony appeals are at issue and pending in the Office of the Clerk of the Oklahoma Court of Criminal Appeals. Act of June 3, 1993, ch. 292, secs. 2-6,1993 Okla.Sess.Laws Serv. 1548,1549-51 (West) (codified at Okla.Stat. tit. 20, §§ 60.-1.-.5). Each emergency appellate panel consists of three trial judges, two of whom must concur in any decision. Okla.Stat. tit. 20, § 60.3. Each panel must dispose of any cases assigned to it or return the eases to the Oklahoma Court of Criminal Appeals for resolution within ninety days. Decisions of the panels are final unless the Oklahoma Court of Criminal Appeals grants a petition for review. Id. at § 60.1. Judge Johnson of the Oklahoma Court of Criminal Appeals testified that sixty-six cases had been assigned to emergency appellate panels since the legislation went into effect, and three of the cases had already been decided. The second act cut in half the time allowed for perfecting appeals in misdemeanor and felony cases (ie., filing the record with transcripts); an appeal must be perfected in 90, rather than 180, days from the date the judgment and sentence are pronounced. Act of June 7, 1993, ch. 298, sec. 5, 1993 Okla. Sess.Laws Serv. 1562, 1564 (West) (codified at Okla.Stat. tit. 22, § 1054). Because the briefing schedule does not begin to run until the appeal has been perfected, reducing the time permitted for perfecting the appeal effectively reduces delay on appeal by ninety days. The district court entered its findings of fact and conclusions of law concerning delay by the Attorney General and the Oklahoma Court of Criminal Appeals, as well as cumulative delay throughout the appellate system, on September 8, 1993. The court found that pursuant to data provided by the parties, “there are approximately 302 matters now considered Harris cases as of August 13, 1993.” R., Doc. 255 at 4. An appellate brief had been filed on behalf of the appellant in at least 301 of the cases and the Attorney General had filed a brief on behalf of the appellee in all but three cases. The Attorney General’s briefs were filed within the statutory period in 130 cases and were filed more than sixty days after the statutory period in only sixty-seven cases. The Oklahoma Court of Criminal Appeals had issued opinions in eighty-five of the cases, and 217 cases remained pending before the court. Of those, six were not yet at issue, 125 were at issue and ready to be assigned to a judge, and eighty-six were at issue and had already been assigned to a judge. The district court found no evidence of systemic delay in filing briefs by the Attorney General and also determined that although delay by the Oklahoma Court of Criminal Appeals may have been inordinate in individual cases, it had not been systemic. The court further concluded that there was no cumulative inordinate systemic delay at present. The court held that a delay in adjudicating an appeal of more than two years from the notice of appeal or order permitting an appeal out of time to issuance of an opinion would be presumed to be unconstitutional “absent a showing of good and sufficient cause or special circumstances.” Id. at 8. The court again ruled that before a habeas petitioner could assert unconstitutional delay in federal court, he or she first had to raise the issue to the Oklahoma Court of Criminal Appeals and permit it to take appropriate action. On September 28, petitioners filed their notice of appeal from the court’s September 9 order, which the court certified as final pursuant to Rule 54(b). The two appeals were consolidated by our order of October 14, and we heard oral argument in the appeals on November 8, 1993. On appeal, petitioners assert that the district court’s findings and conclusions concerning their due process, equal protection, and ineffective assistance of counsel claims are incomplete and, in certain instances, erroneous. Petitioners also contend that Judge Brett, who was a member of the three-judge district court panel, should have recused himself on the habeas claims pursuant to 28 U.S.C. § 455. Finally, petitioners maintain that the district court erred in not awarding interim attorney fees against the State for work performed by counsel on behalf of petitioners. We will discuss each of these issues below. II. ISSUES ON APPEAL RELATING TO DELAY A. Exhaustion of State Remedies A threshold question that must be addressed in every habeas case is that of exhaustion. Federal habeas relief is not available to a state prisoner “unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254(b). The exhaustion doctrine, which was codified in 1948, began as “a judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a ‘swift and imperative remedy in all cases of illegal restraint or confinement.’ ” Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973) (quoting Secretary of State for Home Affairs v. O’Brien, [1923] A.C. 603, 609 (H.L.)). Although the doctrine advances several interests, see Deters v. Collins, 985 F.2d 789, 794 (5th Cir.1993), it “is principally designed to protect the state court’s role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). Because “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,” federal courts apply the doctrine of comity, which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). Exhaustion is, therefore, based on principles of comity; exhaustion is not jurisdictional. Patterson v. Leeke, 556 F.2d 1168, 1170 (4th Cir.), cert. denied, 434 U.S. 929, 98 S.Ct. 414, 54 L.Ed.2d 289 (1977). “Although there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies, his failure to do so is not an absolute bar to appellate consideration of his claims.” Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987). The State may waive a prisoner’s failure to exhaust by failing to raise the defense in federal district court. Id. at 135, 107 S.Ct. at 1675. Likewise, some cases may present special circumstances that make it “appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion.” Id. at 131, 107 S.Ct. at 1673; Frisbie v. Collins, 342 U.S. 519, 521, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952). One such eircum-stance is when the State’s process is inadequate to protect a prisoner’s rights. See 28 U.S.C. § 2254(b); Darr, 339 U.S. at 210, 70 S.Ct. at 593. “[W]here state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceeding.” Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963); see also Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir.1991) (“[T]he principle of comity weighs less heavily [when] the state has had an ample opportunity to pass upon the matter and has failed to sufficiently explain its ... delay.”); United States ex rel. Hankins v. Wicker, 582 F.Supp. 180, 182 (W.D.Pa.1984) (“If an appropriate remedy does not exist or its utilization is frustrated in the state system, ... [t]he deference accorded the state judicial process must give way to the primary role of the federal courts to redress constitutional deprivations.”), aff'd, 782 F.2d 1028 (3d Cir.) (table), cert. denied, 479 U.S. 831, 107 S.Ct. 118, 93 L.Ed.2d 64 (1986). Thus, “inexcusable or inordinate delay by the state in processing claims for relief’ may make the state process ineffective to protect the petitioner’s rights and excuse exhaustion. Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986); accord Hill v. Reynolds, 942 F.2d at 1496 (“[T]he delay [petitioner] faced in having a direct appeal filed proves his state remedies ineffective.”). In Way v. Crouse, 421 F.2d 145, 146-47 (10th Cir.1970), we concluded that it was proper for a habeas petitioner who had experienced an eighteen-month delay in the adjudication of his direct criminal appeal to “seek vindication of his asserted constitutional grievance” in the federal, rather than the state, courts. Noting that “ ‘[t]he concept of federal-state comity involves mutuality of responsibilities, and an unacted upon responsibility can relieve one comity partner from continuous deference,’ ” we vacated the order dismissing the habeas petition for failure to exhaust. Id. at 147 (quoting Dixon v. Florida, 388 F.2d 424, 426 (5th Cir.1968)). Later, in Harris I, we set forth the standard that when “a habeas petitioner makes colorable and sufficient allegations of an unconstitutional delay in obtaining direct state appellate review of his criminal conviction, ... the federal district court should consider that claim on the merits without requiring that he exhaust his direct state appeal first.” 938 F.2d at 1068-69. Because exhaustion is a threshold issue, it often can be addressed on the pleadings without the need for an evidentiary hearing. However, an evidentiary hearing was deemed necessary in Harris I to investigate the reasons for delay in light of the allegations of systemic delay. We turn now to the question: At what point does delay in the state process become so inordinate that exhaustion should be excused? In addressing this question, we must keep in mind that “[i]t is the legal issues that are to be exhausted, not the petitioner,” Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw. 1973). We cannot, of course, announce a bright line rule. As we noted in Way, 421 F.2d at 146-47, and Jones v. Crouse, 360 F.2d 157, 158 (10th Cir.1966), it is necessary to know the facts and circumstances surrounding the delay in order to determine whether the State is providing the petitioner an effective appeal. In Way, we concluded that an eighteen-month delay in docketing a direct appeal before the state supreme court was enough to excuse exhaustion in the absence of facts and circumstances justifying that delay. 421 F.2d at 146-47. Based on other facts and circumstances, courts have found other periods of delay sufficient to conclude that the state process was ineffective and exhaustion should be excused. See Simmons v. Reynolds, 898 F.2d 865, 870 (2d Cir.1990) (suggesting that “[t]he doctrine of exhaustion of state remedies does not require a prisoner to wait ... three or four years before enlisting federal aid to expedite an appeal”); Rheuark v. Wade, 540 F.2d 1282, 1283 (5th Cir.1976) (remanding for district court to excuse exhaustion if fifteen-month delay in preparing transcript could not be justified); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir.1970) (remanding for district court to excuse exhaustion if seventeen-month delay in briefing direct criminal appeal could not be justified); United States ex rel. Hankins, 582 F.Supp. at 182 (finding “the twenty four month delay in the disposition of [petitioner’s] direct appeal, to which is added the nine month period between his conviction and the filing of a notice of appeal, sufficient to question the adequacy of the state remedy” and to excuse exhaustion); cf. Smith v. Kansas, 356 F.2d 654, 657 (10th Cir.1966) (remanding for district court “to take such steps as it deems necessary to secure petitioner’s right to a prompt hearing on his claim of unconstitutional restraint” where more than one year passed between filing of motion for post-conviction relief and entry of appealable order), cert. denied, 389 U.S. 871, 88 S.Ct. 154, 19 L.Ed.2d 151 (1967); Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir.1978) (excusing exhaustion because state habeas petition had been completely dormant for over one year and the State had offered “no reason for its torpor”); St. Jules v. Beto, 462 F.2d 1365, 1366-67 (5th Cir.1972) (remanding for district court to excuse exhaustion and address merits if seventeen-month delay in state trial court ruling on motion for post-conviction relief could not be justified); Jones, 360 F.2d at 158 (remanding for district court to excuse exhaustion if eighteen-month delay in adjudicating appeal from denial of post-conviction relief could not be justified); Dixon, 388 F.2d at 426 (remanding for district court to excuse exhaustion and address merits if eighteen-month delay in state trial court ruling on post-sentencing motion could not-be justified); Seemiller v. Wyrick, 663 F.2d 805, 807-08 (8th Cir.1981) (remanding for district court to excuse exhaustion and address claims if state court had not ruled within sixty days on motion for post-conviction relief that had been pending for two years); Wojtczak, 800 F.2d at 355-56 (excusing exhaustion because motion for post-conviction relief had been pending for more than two and one-half years); Moore v. Deputy Comm’rs of SCI-Huntingdon, 946 F.2d 236, 242 (3d Cir.1991) (excusing exhaustion because petition for post-conviction relief had been pending for three years), cert. denied, — U.S. -, 112 S.Ct. 1509, 117 L.Ed.2d 647 (1992). Although we cannot establish a bright line, we think it would be helpful to articulate a time period beyond which there is at least a presumption that the state process has become ineffective because of delay. Based upon the record before us, as well as our review of the case law in this and other circuits, we conclude that delay in adjudicating a direct criminal appeal beyond two years from the filing of the notice of appeal gives rise to a presumption that the state appellate process is ineffective. We recognize that cases may arise in which exhaustion should be excused even though an appeal has been pending for less than two years. Conversely, we also recognize that, in particular cases, the State may show that a delay of more than two years is justified and, therefore, good cause exists for not excusing exhaustion. Thus, we hold only that the state appellate process should be presumed to be ineffective and, therefore, exhaustion should presumptively be excused, when a petitioner’s direct criminal appeal has been pending for two years without resolution absent a constitutionally sufficient justification by the State. See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987) (Burkett I) (“[W]here a petitioner has demonstrated inordinate delay, we have placed the burden on respondents to demonstrate why further resort to the state courts should be required.”). Although § 2254 requires a habeas petitioner to exhaust his or her underlying claims before coming to federal court, it does not require a petitioner to exhaust the issue of exhaustion, itself. Because exhaustion functions as a federal court gatekeeper, the federal, not the state, courts decide when the state process has been exhausted or should be deemed ineffective because of delay. Moreover, requiring a petitioner to raise the issue of exhaustion first in state court would unnecessarily frustrate a petitioner’s right to a speedy adjudication of Ms or her claims. See Way, 421 F.2d at 146-47 (conditionally excusing petitioner from having to raise issue of delay to “the very courts which are responsible, on the face of the pleadings, for the very delay of which he complains”); Brooks v. Jones, 875 F.2d 80,31 (2d Cir.1989) (“When the petitioner can substantiate Ms complaint that his right to appeal is being violated by mattention and time-consuming procedures, to require one more techmcal step would be to tolerate the frustration of the petitioner’s due process rights.”); United States ex rel. Hankins, 582 F.Supp. at 182 (“[Wjhere the state process is itself the basis for the claim[ed] denial of due process the issue has properly been presented [to the state judiciary].”). But see Schandelmeier v. Cunningham, 819 F.2d 52, 54-55 (3d Cir.1986) (holding that because petitioner had not pursued procedures for presenting his claims based on sentencing delay to the state court, he had not exhausted his remedies and could not seek federal relief), cert. denied, 480 U.S. 938, 107 S.Ct. 1584, 94 L.Ed.2d 774 (1987). Once exhaustion is excused, a federal court has the power to review the merits of a petitioner’s habeas petition to the extent that it raises federal issues. See, e.g., Jones, 360 F.2d at 158. In many (indeed, most) instances, however, proceedmg directly to the merits of a petitioner’s claims after excusing exhaustion may not be the preferred course of action, or even an effective one. If exhaustion is excused due to delay in adjudicating a petitioner’s direct criminal appeal, the federal habeas review will, in some regards, serve as a surrogate for a direct state appeal. This raises several concerns. First, because the petitioner would be entitled to appointed counsel on direct appeal, Douglas v. California, 372 U.S. 353, 356-58, 83 S.Ct. 814, 816-17, 9 L.Ed.2d 811 (1963), it may be appropriate to appoint counsel to represent the petitioner on habeas review. Likewise, the federal court may need to ensure that an indigent petitioner has a free copy of the trial transcript if it is necessary to evaluate his or her habeas petition. See Griffin v. Illinois, 351 U.S. 12, 19-20, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). Furthermore, to the extent the petitioner’s underlymg claims of error are state claims, the federal court cannot review them even if exhaustion is excused, because federal habe-as review is limited to alleged “violation[s] of the Constitution or laws or treaties of the UMted States.” 28 U.S.C. § 2254; see also Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determmations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the UMted States.”). Fmally, federal courts should not be required as a routine matter to fulfill the State’s obligation to provide an “adequate and effective” direct criminal appeal to its indigent criminal defendants, Griffin, 351 U.S. at 20, 76 S.Ct. at 591. Requiring the federal courts to do so on a regular basis just because the State does not fulfill its own constitutional obligations would unnecessarily tax federal resources and rnject the federal courts mto the State’s process. Thus, we consider an alternative. We start by noting that delay in adjudicating a state prisoner’s direct criminal appeal may do more than simply excuse exhaustion. It also may give rise to an independent due process claim. Harris I, 938 F.2d at 1068; accord United States v. Pratt, 645 F.2d 89, 91 (1st Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Cody v. Henderson, 936 F.2d 715, 719 (2d Cir.1991); Burkett v. Fulcomer, 951 F.2d 1431, 1446 (3d Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 3055, 120 L.Ed.2d 921 (1992) (Burkett II); Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir.1990). Thus, a habeas petition may be predicated on a due process violation arising from the State’s delay in adjudicating a petitioner’s direct criminal appeal even if the petitioner’s allegations of error at the trial level are based on state law and, therefore, not proper for federal habeas review. Once appellate delay rises to the level of an independent due process violation, a wide range of remedies is available with which the federal district court can redress the constitutional violation. These remedies often will be more effective in redressing state appellate delay than will merely excusing exhaustion and considering the petitioner’s underlying claims on the merits. We turn, therefore, to the requirements for establishing an independent due process claim based on the State’s delay in processing a direct criminal appeal. B. Substantive Claim That Appellate Delay Violates Right To Due Process 1. Elements of the claim The Due Process Clause provides that “No person shall ... be deprived of life, liberty, or property, without due process of law....” U.S. Const, amend. V. Similarly, the Fourteenth Amendment provides “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Id. amend. XIV, § 1. The right to a speedy trial, which is guaranteed an accused by the Sixth Amendment, is a fundamental right imposed on the states by the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. at 515, 92 S.Ct. at 2184. Although the Constitution does not require the State to afford a criminal defendant a direct appeal to challenge alleged trial court errors, see McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 914, 38 L.Ed. 867 (1894), the Supreme Court has held that if a State has created appellate courts as “an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant,” Griffin v. Illinois, 351 U.S., at 18 [76 S.Ct. at 590], the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985) (alteration in original). To ensure the defendant’s right to a “meaningful appeal,” Douglas v. California, 372 U.S. at 358, 83 S.Ct. at 817, the Court has held that when the State affords a criminal defendant an appeal by right, the Fourteenth Amendment requires, among other things, that counsel be appointed to represent an indigent defendant id. at 356-58, 83 S.Ct. at 816-17, that the representation of counsel be effective, Evitts, 469 U.S. at 396, 105 S.Ct. at 836, and that either an indigent defendant be provided a free transcript or some equivalent method of reporting the trial proceedings be employed, Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 778, 9 L.Ed.2d 899 (1963); Griffin v. Illinois, 351 U.S. at 19-20, 76 S.Ct. at 590-591. We may add to this list the requirement that the State afford the defendant a timely appeal, for an appeal that is inordinately delayed is as much a “meaningless ritual,” Douglas, 372 U.S. at 358, 83 S.Ct. at 817, as an appeal that is adjudicated without the benefit of effective counsel or a transcript of the trial court proceedings. See Burkett I, 826 F.2d at 1221-22; United States ex rel. Smith v. Twomey, 486 F.2d 736, 739 (7th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974); cf. Coppedge v. United States, 369 U.S. 438, 449, 82 S.Ct. 917, 923, 8 L.Ed.2d 21 (1962) (“No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures.... Delay in the final judgment of conviction, including its appellate review, unquestionably erodes the efficacy of law enforcement.”); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”). When determining whether a criminal defendant has been deprived of his or her right to timely process at the trial level, the Supreme Court has established a balancing test to be applied on an ad hoc basis. Barker, 407 U.S. at 530, 92 S.Ct. at 2191. Four factors should be assessed and balanced: “(1) [l]ength of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.” Id. (numbers added). The fourth factor “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Id. at 532, 92 S.Ct. at 2193. The “Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. Although Barker addressed only a defendant’s Sixth Amendment right to a speedy trial, the balancing test the Court enunciated provides an appropriate framework for evaluating whether a defendant’s due process right to a timely direct criminal appeal has been violated. See Rheuark v. Shaw, 628 F.2d at 303 (“The factors of Barker are preferred [over] the standard announced in United States v. Lovasco, 431 U.S. 783 [97 S.Ct. 2044, 52 L.Ed.2d 752] ... (1977) [concerning pre-indictment delay], since the reasons for constraining appellate delay are analogous to the motives underpinning the Sixth Amendment right to a speedy trial.”) (footnote omitted); DeLancy v. Caldwell, 741 F.2d 1246, 1248 (10th Cir.1984) (“We agree with the Fifth Circuit that the right to avoid unreasonable delay in the appellate process is similar to the right to a speedy trial.”); Burkett II, 951 F.2d at 1445-46 (holding that delay in adjudicating an appeal, which infringes on due process rights, is effectively no different than delay in imposing a sentence, which infringes on Sixth Amendment speedy trial right). We can apply the first three factors of the Barker test to claims of appellate delay without modification. We must modify the fourth factor of prejudice to the defendant, however, to reflect the interests sought to be protected by an appeal “unencumbered by excessive delay.” Rheuark v. Shaw, 628 F.2d at 303 n. 8. The Fifth Circuit has identified the following interests that should be considered when assessing prejudice arising from appellate delay: “(1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired.” Id. In DeLancy, 741 F.2d at 1248, we adopted the Fifth Circuit’s modification of the Barker prejudice factor for purposes of appellate delay. We also heeded the Supreme Court’s admonition that the four factors of the balancing test are related and should be considered together with such other circumstances as may be relevant. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; DeLancy, 741 F.2d at 1248. Nevertheless, as we discuss below, we view the first factor — length of delay — as a threshold that a petitioner must meet before the court need consider the other factors. Furthermore, we agree with the Ninth Circuit that, ordinarily, a petitioner must make some showing on the fourth factor— prejudice — to establish a due process violation. United States v. Tucker, 8 F.3d 673, 676 (9th Cir.1993) (en banc). Therefore, in determining whether delay in adjudicating a petitioner’s direct criminal appeal violated the petitioner’s due process rights, we must balance the following factors: a. the length of the delay; b. the reason for the delay and whether that reason is justified; c. whether the petitioner asserted his right to a timely appeal; and d. whether the delay prejudiced the petitioner by i. causing the petitioner to suffer oppressive incarceration pending appeal; or ii. causing the petitioner to suffer constitutionally cognizable anxiety and concern awaiting the outcome of his or her appeal; or iii. impairing the petitioner’s grounds for appeal or his or her defenses in the event of a reversal and retrial. We will address each of these factors in turn. a. The length of the delay The first factor in the balancing test is the length of the appellate delay. “Only passage of an inordinate amount of time triggers due process coneern[s].” Hill v. Reynolds, 942 F.2d at 1497 (emphasis added). Therefore, if a petitioner cannot establish at least some degree of inordinate delay, the court need not inquire into the other factors. Cf. Dog-gett v. United States, — U.S. -, - -, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992) (holding that because no speedy trial violation occurs if the government prosecutes a defendant “with customary promptness,” “to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay”). We cannot set an inflexible length of time that will constitute inordinate delay in every case. See Barker, 407 U.S. at 521, 92 S.Ct. at 2187 (‘We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.”); Coe v. Thurman, 922 F.2d at 531 (“[T]here is no talismanic number of years or months, after which due process is automatically violated.”). Nonetheless, it seems appropriate to judge appellate delay by the same two-year presumptive standard that we used earlier to excuse exhaustion. See supra at p. 1556. Therefore, a two-year delay in finally adjudicating a direct criminal appeal ordinarily will give rise to a presumption of inordinate delay that will satisfy this first factor in the balancing test. Creating a presumption that a two-year delay in adjudicating an appeal is inordinate comports with the district court’s ruling that “a two-year period, from the notice of appeal or order permitting same, be established as the time period for resolution of a direct criminal appeal in Oklahoma beyond which any delay will be presumed to be unconstitutional, ... absent a showing of good and sufficient cause or special circumstances.” R., Doc. 255 at 8 (footnote omitted). Respondents do not challenge the district court’s two-year presumptive period. Although petitioners argue for a shorter period, the only basis for their argument is that in 1991, the Tenth Circuit’s median time for deciding direct criminal appeals was 11.7 months. See Appellant’s Principal Br. (No. 93-5128) at 57; Appellant’s Principal Br. (No. 93-5209) at 18-19. We are not sufficiently persuaded by this single statistic to conclude that the district court erred in establishing a two-year presumptive period. See United States v. Pratt, 645 F.2d at 91 (declining to hold nine-month appellate delay unconstitutional in absence of exacerbating factors); United States ex rel. Harris v. Reed, 608 F.Supp. 1369, 1376 (N.D.Ill.1985) (holding that a seven-and-one-half-month delay in adjudicating a motion for post-conviction relief was not so egregious as to violate petitioner’s due process rights); Doescher v. Estelle, 454 F.Supp. 943, 952 (N.D.Tex.1978) (determining as a matter of law that a one-year delay in processing petitioner’s appeal was not unjustified), appeal dismissed, 597 F.2d 281 (5th Cir.1979) (table). The district court concluded that two years to adjudicate an appeal in Oklahoma is both customary and feasible. Furthermore, a two-year delay is within the time frame that other courts have found to raise due process concerns. For example, in United States ex rel. Hankins, 582 F.Supp. at 184-85, the court held that the pendency of an appeal for two years with no decision by the state appellate court, coupled with a nine-month delay by the trial court in ruling on post-trial motions, gave rise to a prima facie due process violation. See also Dozie v. Cady, 430 F.2d at 638 (holding that seventeen-month delay in filing opening brief warranted inquir