Jay R. Thompson, Petitioner-Appellant,
Richard Brown, Respondent-Appellee.
June 6, 2018
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.
Wood, Chief Judge, and Kanne and Scudder, Circuit Judges.
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.
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
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.
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."
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
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.
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.
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.
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 ...