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Thompson v. Brown

United States Court of Appeals, Seventh Circuit

August 27, 2018

Jay R. Thompson, Petitioner-Appellant,
Richard Brown, Respondent-Appellee.

          Argued June 6, 2018

          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.

          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 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 post-conviction 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.


         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 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 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 ...

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