and we will move on to case number six thompson against brown rule that left his doctrine applies to a petitioners delay in prosecuting an already pending post conviction be dition was firmly established and regularly followed in indiana at the time when mr townson state court petition was decided so can you have a lumen it's something for me you mention in your reply brief in particular indiana trial procedural rule forty one e e which is a way that a party can seek to have a case just missed for failure to prosecute at the time as i'm remembering back in one thousand nine hundred two when mr thompson files this post conviction conviction does any notice go to the state at all that this is been filed just this go to the public defender to decide whether to do anything about it or what exactly happens your honor it's not exactly clear from the record but we do have on the record is that mr thompson filed this petition we don't have indication of any sort of automatic notice but we do have noticed that are we going to have on the record that he filed this petition and that the state did choose to respond to it albeit about thirteen years later right and so what i'm trying to this is i mean maybe in the end it's not going to be relevant but it does seem to me that mr thompson as an initial matter has done what he's supposed to do it files a petition it's within a reasonable period of time after the direct appeals and one of the questions that's relevant to latches is to what extent is this delay attributable to him you know to what extent should he have known that he needed to keep nagging somebody to do something or and to what extent did he rationally rely on whatever indiana's normal procedures are for these cases yes your honor and i think that the state does make a point about a case law that discusses what period of delay was attributable to a petitioner but i think what's relevant for this appeal is that all of these cases despite you know sort of about the attribute ability of any sort of delay to a petitioner whether that was pre filing or post filing all of these cases starting with douglas versus state and also applied by ad words versus state and sanders versus state all of those cases held that the delay between filing and prosecution of a petition was not relevant for lectures purposes so and so you're saying this was the the landmark case for indiana you can see that going forward if indiana wants to have this rule it's fine but you can't indiana that this period of delay involved in this petition that is relevant for elections purposes that firmly established rule was firmly established by mr thompson's case it was it was the first case to haul but from a commonsense standpoint it's twenty two years from the time in conviction before anything done and we don't know whether when he filed the initial petition he served the state and that's that's what judge would ask well that's what i was trying to find out what what was his responsibility because we understand he was appointed several public defenders between ninety two and ninety seven one finally withdraws saying that she's consulted with him and so what which part of this is on him and which part of it is that indiana just says doesn't happen to have rules for very prompt service is an interesting question to say the least in terms of all of this to see that was between ninety two and ninety seven and yes your honor in those in those times that those public defenders were appointed with through there was no response from the state and to the point that to the point that you made your honor that you know it's a matter of common sense your honor pointed out indiana trial rule forty one if the state did have a problem with this period of delay and the argument is that this was the us the argument the state would make is this is obvious that th the state is assuming that it would be prejudiced if this case went forward and i don't disagree with it if we assume that mr thompson prevails on this petition but i would be shocked beyond all description if indiana places the burden of proof on the state in a post conviction situation i am sure that mr thompson's burden to show that there is something wrong with what went on and it seems like all sorts of people have died in evidence has disappeared i find it actually incredible to think that mr thompson could prevail in his own burden of proof to show flaws in one thousand nine hundred eighty two conviction for think you're already winning with the burden of proof when there's no evidence when there's no evidence and you have the burden of proof you lose your honor there is i believe a double jeopardy claim that really wouldn't rely on sort of this past evidence but as to in which  state wouldn't be prejudiced either correct and correct your honor but as as to the rest of the claims you know mr thompson isn't isn't trying to prosecute the claims on this appeal mr thompson is just trying to get a court to hear the merits of his claims and you know to to the extent that the indiana state court feels but they'll be prejudiced you know this this is a situation that is you know unfortunate with the preservation of evidence but that doesn't mean that mr thompson deserves to ha in finding an unreasonable delivery in his case mr mr i'm sorry unreasonable to lay under the current established indiana press that i understand so i want to set aside this whole is it responsible for this to would be in part your or your honor no he i and he did i believe that mr what mr thompson did concede to in the state court with that the state has suffered prejudiced however matter which way you shake it because under established indiana law at the time his petition was filed this what this period of time wasn't relevant for determining your life and i'm asking that is the appellate court said he thompson has provided no argument as to why his twenty two year delay in doing so is not unreasonable and that in my mind that brings me right back to the question the judge was asking what is he supposed to do he filed the petition he's in jail is is there some obligation that he's me please the court judge would i just want to take a moment and answer your question with opposing counsel about whether the state was notified the record does not reflect whether the state was notified at the time he filed his petition but the state public defender's office did enter an appearance in october of one thousand nine hundred two and withdrew in march of ninety seven so i did not know can you answer this for me then i mean that's helpful to step along the way and i'm by no means the expert that you probably are in indiana court procedure but it is the normal course of things is it the as the indiana trial rules are set up as i would have imagined they would be that the respondent would be notified when a post conviction petition is filed yes your honor my understanding is that typically the state is notified however back in one thousand nine hundred two i think the procedure is and you know you can ask like in federal court for the marshals to effect service you know it's with the pro se post conviction people sometimes there are special rules and i'm frustrated not to have some sense of at least if things had operated the way they were supposed to operate or that they ordinarily operate what would have happened so i guess we do given as one helpful data point which is that the public defender files an appearance but i guess the state docket and  that i guess we roll through several of them until nine hundred ninety seven when somebody gets out then things sit around for for four years and then he asks for a copy of the record the states's state public defender says we don't represent you then he tries to proceed pro se in two thousand and five be there at least the gaps in time but it's not clear which you know why the state couldn't long since have filed a petition to dismiss for failure to prosecute you're not saying the state didn't know what some point along the way no your honor that's not what i'm saying you know you have to do we have anything in the record to show that at least by x date the state of indiana knew that this was pending yes your honor in two thousand and five when thompson filed a motion to proceed by affidavit he wanted to do the post conviction proceedings of the affidavit which is permissible post conviction rules at that point the state filed their response and how did the state know that this case existed the record does not reflect that information about it so there's no reason to believe that he that he served that motion on the state either that would probably be up to the court anyway whether to let somebody proceed pro say yes your honor i did want to go back home like earlier time that we don't know about the state found out that this case was pending yes your honor based on the current based on the chronological case summary that we have from post conviction that is accurate i will make two points regarding that though one is a new point in time is thompson filing anything saying hey i'm waiting on the state to do this so why is that his burden i mean that's that that's really my what i think of life is first of all i have a big problem with slashes in the under these circumstances with the lack of any indiana precedent till his case that would have applied this way but if you get over that then i'm not familiar with you know the duty to nag you know plaintiffs filed cases and then if the ball winds up in the defendant's court for a period of time the plaintiff is in a big hurry to i mean trial court can the petitioner can request that the trial court serve the state and i have seen that happen before but that wasn't done here as far as we can tell but the question of whether the state responded here that goes to the play before mr thompson's case of course and i'm certainly willing to assume that if that's the rule indiana wants to have that's not relevant to this case so we'll worry about that some other time but you didn't cite anything that may he had no reason to know back in one thousand nine hundred two or indeed up until this case was decided that he risked losing everything by not nagging the court and that goes back your honor to the state's position here which is that latches is a general rule not just latches but any rule that the application the supreme court warns us all the time about hitting the right level of specificity i'll call it that whether it's qualified immunity whether it's other things and so for indiana to say over there is this doctrine of latches up here it depends how it's being applied we wouldn't be here if this was a case where he didn't even file until two thousand and five if the indiana court said what i just missed you said that's up to them worked and it has been applied in a variety of contexts the first case that i could find where latches was applied was an eighteen nineteen but how about to host filing you haven't neglected if you filed your lawsuit that not they're the application of latches to oppose conviction setting was firmly just filing post conviction correct your honor but that goes back to the fact that if you look at latches if you look at the equitable dr and of latches it is a general doctrine and there's nothing in indiana law that precludes its application in this context so in indiana doesn't believe in giving people notice of what the rules are because if  if anybody had known of the public defender had know that neglect of the case after it was filed meant that all of his rights would be lost it's reasonable to think something different what has happened well two points your honor one is that we don't have any information until two thousand and five that mr thompson didn't know and even at that point the state did file a response why would you think he knew he's a prisoner but in indiana prisoners are held to the same standard as attorneys and at the first  outset he was represented by the state public defender's office and a letter from one thousand nine hundred seven where the state where the state public defender's office seeks to withdraw says that they have sat down with thompson and they have explained to him the procedure posture of the case they have looked at and see and they have not found any meritorious issues but also i would like to make the point that typically the united states supreme court has not found that this type of rule is an adequate they want courts to adopt discretion the four categories of cases that i was able to find where the u s supreme court has said no that's not and also this court has said have said that that is not independent adequate are either where it's based on federal law federal laws intertwined with state law so it's not independent from an adequacy perspective when there is state case law that directly contradicts and that is a citation to johnson versus mississippi directly contradicts or when it is a new rule  which i believe in that's where i think we are here i mean the question before us is whether this is a brand new rule that in the end made up in his case free to follow going forward but never done before well i a couple of points there one is the fact that it's important to remember that in one thousand nine hundred two when he first filed his post conviction petition he was represented by the state public defender's office so and also the letter shows that he knew but also even if we assume he didn't know until two thousand and five when he actually started moving this forward the state asserted latches that that point he was aware the latches existed if he was aware that he needed to move this litigation forward if honor here actually the application of watches this state's assertion of the affirmative defense of latches required the state to show prejudice which does not which it is not required under a tro rule forty one emotion are for the foregoing reasons respondent respectfully request that this court affirm the district court ok thank you  your honors if there was a firmly established and regularly followed rule in indiana at the time mr thomson state station was filed it was that latches did not apply to post filing delay the best possible interpretation of the case law for the state on this issue is that it was unsettled and furthermore this was not a discretionary application of the elections dr this court's precedent has made clear that an inconsistent on expected application even of an established rule is not sufficient to bar federal k b s or view this with the definition of unexpected as your honour's pointed out mr thompson's petition was the first time this rule was ever announced in any indiana court and for those reasons your honour's we respectfully request that this court reversed the decision of the federal district court thank you thank you very much and thank you as well for accepting our appointment in this case we appreciate your efforts and those of your firm thanks as well  course in this time we will take the case under