### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 2085
J AY R. T HOMPSON , Petitioner

- Appellant
,

v.

R ICHARD B ROWN , Respondent

- Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Indiana
, Terre Haute Division

. No. 2:16

- cv

- 244

- WTL

- DKL

— William T. Lawrence
, Judge

.

____________________

A RGU ED J UNE 6, 2018

— D ECIDED A UGUST 27, 2018

____________________

Before W OOD , Chief Judge , and K ANNE and S CUDDER , Circuit Judges

. W OOD , Chief Judge

. Jay Thompson ’s efforts to obtain a writ of habeas corpus under 28 U.S.C. § 2254 foundered, as so many do, on procedural default

— specifically, the decision of Indiana’s judiciary to reject his postconviction petition under that state’s laches doctrine. The state court relied on delays that took place after Thompson had filed his postconviction2 No. 17

- 2085

petition

— delays for which Thompson was responsible, the

s tate court ruled, for failing to “prosecute” his case.

But when the state court dismissed the petition there was

not yet a firmly established and regularly followed rule in Indiana that laches applies to delays to an already

- filed action

. The relevant pre cedents dealt only with delays in filing a postconviction petition. W e conclude that Thompson’s petition is not barred by an adequate and independent state ground, and so we vacate and remand the case for further proceedings

. I
An Indiana jury convicted Thompson in 1982 of murder and conspiracy to commit burglary , on the theory that Thompson and a friend stabbed a couple to death during a housebreaking. Thompson v. State , 31 N.E.3d 1002, 1003

– 04 (Ind. Ct. App. 2015). Thompson ini tially was sentenced to death but later was resentenced to an aggregate 120 years’ imprisonment. Id. The Indiana Supreme Court affirmed. Id. at 1004. Thompson next filed a pro se postconviction petition in
state court in August 1992. The court appointed s everal public defenders to represent him between 1992 and 1997, until the final one withdrew
, stating that she had “consulted” him first. Thompson’s petition apparently languished until 2001, when he requested a copy of the record. The state public

- defende r agency notified the court that it would not represent Thompson because his case had been fully investigated and his prior attorneys had “found no meritorious issues.”Thompson filed nothing more until 2005, when he requested leave to proceed pro se . Onl y then did the state raise laches, asserting that relief for Thompson was barred on thatNo. 17

- 2085 3

ground. Thompson responded with two lengthy amended petitions
, and he hired an attorney. That attorney filed another amended petition in 2006. The trial court tentativ ely scheduled a n evidentiary hearing, and the s tate answered the counseled amended petition by again asserting laches. Meanwhile, the court ordered DNA tests on several pieces of evidence

. Testing was completed , but despite a series of continuances, no evi dentiary hearing appears to have been held. The proceedings again fell into limbo . In 2012 Thompson retained a new attorney, who alerted the court that Thompson had filed a disciplinary complaint against his previous retained counsel. The new attorney file d yet another amended petition in 2013, and again the s tate responded with the defense of laches . The parties stipulated that the delay had prejudiced the s tate . But Thom pson argued that the delay was the fault first of the public defender and then of reta ined attorneys who had abandoned him

. After a 2014 hearing, the trial court dismissed Thompson’s petition as barred by laches. Thompson

— once again pro se

— appealed, arguing that the trial court misapplied laches because that doctrine concerns a delay in filing , not prosecuting, an Indiana action. The appellate court disagreed, holding that the doctrine of laches logically extends to a delay in prosecuting an already

- filed action. Thompson , 31 N.E.3d at 1006

– 07. The state supreme court denied Thompson’s pe tition to transfer. Out of options in state court, Thompson turned to federal court with this petition for a writ of habeas corpus under
28 U.S.C. § 2254, arguing claims raised in his original and first amended state petitions: that his trial attorney was ineffective and that his conviction violates the protection against double4 No. 17

- 2085

jeopardy. The s tate moved to dismiss the federal case . It argued that Thompson’s claims were procedurally defaulted because the laches doctrine is an adequate and independent

state

- law ground of decision that bars the district court from reviewing the merits of any federal claim. See Coleman v. Thompson , 501 U.S. 722, 729 (1991). The district court agreed, concluding that laches was a firmly established and regularly followed rule i n Indiana . The court did not address the potential distinction between laches based on a prefiling delay and laches based on a postfiling delay in prosecuting an action. This court certified an appeal, concluding that Thompson had made a substantial showin g that his rights to effective assistance of counsel and against double jeopardy were violated

. The court asked the parties specifically to address “whether the rule that laches applies to a petitioner’s delay in prosecuting an already

- pending postconvicti on petition

— as distinct from a delay in initially filing the petition

— was firmly established and regularly followed in Indiana” when Thompson’s st ate petition was decided.

II
Indiana has no statute of limitations for a postconviction petition. I ND

. P OST

- C ONVICTION R

. PC 1 § 1(a ) . Instead, the

s tate may raise laches as an affirmative defense and ask the court to assess (1) whether the petitioner unreasonably delayed seeking relief, and (2) whe ther that delay prejudiced the

s tate. See Twyman v. State , 459 N. E.2d 705, 711 (Ind. 1984); Douglas v. State , 634 N.E.2d 811, 815 (Ind. Ct. App. 1994). This much has long been uncontroversial.No. 17

- 2085 5

T he parties agree that when the s tate is prejudiced by an unreasonable delay in filing a petition, Indiana’s laches doctrine is an adequate and independent state ground for denying postconviction relief. See Kelley v. Zoeller , 800 F.3d 318, 327 (7th Cir. 2015) (state laches barred federal review for prisoner who waited 37 years to file state challenge); Henderson v. Cohn
, 919 F.2d 1270, 1271

– 72 (7th Cir. 1990) (featuring roughly
20

- year delay in filing state petition). But Thompson argues that his case involved a novel application of laches because it did not involve delay in filing, but instead delays i n the state courts’ processing of his case after filing

. See Walker v. Martin
, 562 U.S. 307, 320 (2011) (state procedural ground may be inadequate where discretion is used “to impose novel and unforeseeable requirements without fair or substantial support in prior state law” (quoting 16B C HARLES A LAN W RIGHT , A RT HUR R. M ILLER & E DWARD C OOPER , F EDERAL P RACTICE AND P ROCEDURE § 4026 (2d ed. 1996))). We agree with Thompson that although the Indiana appellate court’s ruling in his state appeal may have been a reasonable extension of the laches doctrine, it did not reflect “a firmly established and regularly followed state practice at the time it [was] applied.” Kaczmarek v. Rednour , 627 F.3d 586, 592 (7th Cir. 2010); see White v. Bowersox , 206 F.3d 776, 781 (8th C ir. 2000) (“Even though a rule appears in retrospect to form part of a consistent pattern of procedures, it should not be applied as a procedural default if the defendant could not be deemed to have been apprised of its existence.”). Indeed, it
was unprece dented.

No Indiana case before Thompson’s own appeal involved

a l aches dismissal stemming from a postfiling d elay in prosecuting the postconviction case . Instead, all of the cases on6 No. 17

- 2085

which the state relies i nvolved delays in filing the petition

. See, e.g. , Oliver v. State , 843 N.E.2d 581, 587 (Ind. Ct. App. 2006) (10

- year filing delay); Kirby v. State , 822 N.E.2d 1097, 1100 (Ind. Ct. App. 2005) (28

- year filing delay); Stone v. State
, 444 N.E.2d 1214, 1215 (Ind. Ct. App. 1983) (13

- year filing delay). The bes t the state can do is to note that no case found a prefiling/postfiling distinction “dispositive.” But the absence of a clear barrier to extending laches to postfiling delays does not show that a “firmly established” rule to that effect existed

. Even less does it show a “regularly followed” rule

. Similarly, the s tate argues that the decisions in Douglas and Edwards v. State , 676 N.E.2d 1087 (Ind. Ct. App. 1997), “did not prohibit ” the laches finding based on postfiling delay. But neither did those cases es tablish that postfiling delays should figure in the laches analysis. See Douglas , 634 N.E.2d

at 815

– 16 (observing that no previous case considered delay between filing date and hearing, and declining to penalize petitioner for public defender’s postfiling delay); see also Edwards , 676 N.E.2d at 1089 n.5 ( declining to hold public defender’s postfiling delay against petitioner).
Thus, u ntil Thompson ’s own appeal
, there was an open question whether postfiling delays counted toward laches.
T hat does not demonstrate a “firmly established and regularly followed” rule. Cf

. Albrecht v. Horn , 485 F.3d 103, 115 (3d Cir. 2007) (finding no procedural default because waiver rule was announced in petitioner’s own state appeal); White , 206 F.3d at 781 (concluding th at abandonment rule announced in petitioner’s own state appeal did not bar federal review); Reynolds v. Ellingsworth , 843 F.2d 712, 722 (3d Cir. 1988) (new state procedural rule would not bar federal review if state court applied it “for the first time in the instant case”).No. 17

- 2085 7

The Indiana courts themselves recognized that they were plowing new ground in Thompson’s case. The Indiana Court of Appeals said that it was clarifying or expanding the laches doctrine, not applying a firmly established rule. See Thomps on , 31 N.E.3d at 1006

– 07. Because the parties disputed whether Douglas had considered postfiling delay in the laches context, Thompson’s panel examined that opinion and concluded that Douglas had “acknowledged delay between the filing of and hearing on the petition” but had concluded in any event that Douglas was not at fault. Id. The panel then explored the s tate’s policy arguments and a 2009 concurrence hypothesizing that laches might cover postfiling delay in an appropriate case. It then held that “[a]lt hough the particular facts of some cases may present a distinction between a delay in filing and a delay in prosecuting a PCR petition, we see no reason to draw such a distinctio n here as the prejudice to the S tate would be the same in either case.” Id. at 1007. S ince then, the Indiana appellate court has treated Thompson as the first case to have “held that the delay element of laches may be based on an unreasonable delay in prosecuting a post

- conviction petition.” Tuck v. State , No. 79A02

- 1511

- PC

- 2032, 2017 WL 770939, at *5 (Ind. Ct. App. Feb. 28, 2017). In other words, Thompson’s own case is the leading case on this form of Indiana laches.

I n the absence of a state case applying laches to postfiling delays, Thompson would have had no way of knowing that it was up to him to take some steps in the Indiana courts tomove his case along, while the state was ignoring the proceeding. What steps exactly would suffice would have been unclear. This is in contrast to laches based on prefiling delay
, where the nece ssary step is obvious : f ile a petition. Thompson took that step, back in 1992. Indiana caselaw indicated that he8 No. 17

- 2085

need not worry about delay while the public defender reviewed his petition, becau se that time was not his responsibility . See Douglas , 634 N.E. 2d at 815

– 16. N o rule provided that, when the public defender withdrew in 1997, Thompson had to refile his petition or otherwise affirmatively assert that he w ished to continue pursuing the case . See, e.g ., I ND

. P OSTCONVICTION R. 1 § 4(e) (1992) (if petiti oner’s counselwithdraws, “the case shall proceed under these rules, petitioner retaining the right to proceed pro se in forma pauperis if indigent”).

I f anything, the Indiana rules seem to indicate that the burden of going forward was on the state, once Thompson filed his petition. The Indiana rules provided that “the State, by the prosecuting attorney, shall respond by answer” to the petition within 30 days of filing or within a reasonable time set by the

court. I ND

. P OSTCONVICTION R. 1 § 4(a) (1992) (emphasis added). Though the r ecord is limited, it seems the s tate should have been aware of Thompson’s case as early as 1993, when the public defender sent the prosecuting attorney a copy of her entry of appearance. See also I ND

. P OSTCONV ICTION R. 1 § 2 (1992) (upon receipt, the court clerk shall docket the petition “and deliver a copy to the prosecuting attorney” ).

A petitioner in Thompson’s position might reasonably have believed that the next step was the resp onsibility of the

court or the s tate. See Edwards , 676 N.E.2d at 1 088 (for laches to bar relief, s tate must prove that “petitioner was responsible for the unreasonable delay”); Perry v. State , 512 N.E.2d 841, 843 (Ind. 1987) (same). Perhaps a savvy petitioner would have wondered whether he risked dismissal for failure to prosecute under I ndiana Trial Procedure Rule 41(E) , but

— unlike laches

— that rule permits dismissal without prejudice as aNo. 17

- 2085 9

way to nudge a case along

. See Zavodnik v. Richards
, 984 N.E.2d 699, 703 (Ind. Ct. App. 2013 ). Rule 41(E) would not have alerted anyone to the risk of laches.

W hile the Indiana court now has clearly stated that the laches doctrine applies to unreasonable postfiling delays, this rule was not firmly established and regularly followed before Thompson’s case

. The dismissal of his state case on this procedural ground therefore does not bar federal review. Thompson’s petition should not have been dismissed onthe ground the district court chose. Other issues, however, remain unexplored, and so we must remand Thompson’s petition to allow the parties to develop the record and allow thedistrict court to assess the merits of Thompson’s petition before this court reviews them. See Holmes v. Hardy , 608 F.3d 963, 966 (7th Cir. 2010) (preferring “ to allo w the district court to decide the constitutional issues in the first instance”). We note, for example, that neither the state nor any of the state courts said a word about failure to prosecute as an alternate ground for a finding of procedural default, an d so we leave it to the district court to decide whether that point can now be raised, and if so, whether it has any merit. Accordingly, we V ACATE the judgment and R EMAND for further proceedings.