In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-2085

JAY R. THOMPSON,

Petitioner-Appellant,

v.

RICHARD BROWN,

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.

____________________

ARGUED JUNE 6, 2018 — DECIDED AUGUST 27, 2018

____________________

Before WOOD, Chief Judge, and KANNE and SCUDDER, Circuit Judges.

WOOD, 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 postconviction 
2 No. 17-2085

petition—delays for which Thompson was responsible, the 

state 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 precedents dealt only with delays in filing a postconviction petition. We 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 initially 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 several 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-defender 

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. Only then did the state raise 

laches, asserting that relief for Thompson was barred on that 
No. 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 tentatively 

scheduled an evidentiary hearing, and the state 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 evidentiary 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 filed yet another amended 

petition in 2013, and again the state responded with the

defense of laches. The parties stipulated that the delay had 

prejudiced the state. But Thompson argued that the delay was 

the fault first of the public defender and then of retained 

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 petition 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 double 
4 No. 17-2085

jeopardy. The state 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 in 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 showing 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 postconviction petition—as 

distinct from a delay in initially filing the petition—was 

firmly established and regularly followed in Indiana” when 

Thompson’s state petition was decided.

II

Indiana has no statute of limitations for a postconviction 

petition. IND. POST-CONVICTION R. PC 1 § 1(a). Instead, the 

state may raise laches as an affirmative defense and ask the 

court to assess (1) whether the petitioner unreasonably delayed seeking relief, and (2) whether that delay prejudiced the 

state. 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

The parties agree that when the state 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 in 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 CHARLES ALAN WRIGHT,

ARTHUR R. MILLER & EDWARD COOPER, FEDERAL PRACTICE AND 

PROCEDURE § 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 Cir. 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 unprecedented.

No Indiana case before Thompson’s own appeal involved 

a laches dismissal stemming from a postfiling delay in prosecuting the postconviction case. Instead, all of the cases on 
6 No. 17-2085

which the state relies involved 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 best 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 state 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 establish 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, until Thompson’s own appeal, there was an open 

question whether postfiling delays counted toward laches. 

That 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 that 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 Thompson, 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 state’s policy arguments and a 2009 concurrence 

hypothesizing that laches might cover postfiling delay in an 

appropriate case. It then held that “[a]lthough 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 distinction here as the prejudice to the 

State would be the same in either case.” Id. at 1007. Since 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.

In 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 to 

move 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 necessary step is obvious: file a petition. Thompson 

took that step, back in 1992. Indiana caselaw indicated that he 
8 No. 17-2085

need not worry about delay while the public defender reviewed his petition, because that time was not his responsibility. See Douglas, 634 N.E.2d at 815–16. No rule provided

that, when the public defender withdrew in 1997, Thompson 

had to refile his petition or otherwise affirmatively assert that 

he wished to continue pursuing the case. See, e.g., 

IND. POSTCONVICTION R. 1 § 4(e) (1992) (if petitioner’s counsel 

withdraws, “the case shall proceed under these rules, petitioner retaining the right to proceed pro se in forma pauperis if 

indigent”).

If 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. IND. POSTCONVICTION R. 1 § 4(a) (1992) (emphasis 

added). Though the record is limited, it seems the state 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 IND. POSTCONVICTION

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 responsibility of the 

court or the state. See Edwards, 676 N.E.2d at 1088 (for laches 

to bar relief, state 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 Indiana Trial Procedure Rule 41(E), but—unlike 

laches—that rule permits dismissal without prejudice as a 
No. 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.

While 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 on 

the 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 the 

district 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 allow 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, and 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 VACATE the judgment and REMAND for 

further proceedings.