                             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, Cir-
cuit 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 In-
diana 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.
                               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’ im-
prisonment. 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 Thomp-
son because his case had been fully investigated and his prior
attorneys had “found no meritorious issues.”
   Thompson filed nothing more until 2005, when he re-
quested 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 an-
other amended petition in 2006. The trial court tentatively
scheduled an evidentiary hearing, and the state answered the
counseled amended petition by again asserting laches. Mean-
while, the court ordered DNA tests on several pieces of evi-
dence. Testing was completed, but despite a series of contin-
uances, 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 appel-
late court disagreed, holding that the doctrine of laches logi-
cally extends to a delay in prosecuting an already-filed action.
Thompson, 31 N.E.3d at 1006–07. The state supreme court de-
nied 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 ar-
gued 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 poten-
tial 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 as-
sistance of counsel and against double jeopardy were vio-
lated. 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 de-
layed 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 doc-
trine is an adequate and independent state ground for deny-
ing 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 in-
adequate where discretion is used “to impose novel and un-
foreseeable 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 ap-
pellate court’s ruling in his state appeal may have been a rea-
sonable 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 prose-
cuting 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 de-
lay). 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 de-
lay. 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 pe-
titioner for public defender’s postfiling delay); see also Ed-
wards, 676 N.E.2d at 1089 n.5 (declining to hold public de-
fender’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 regu-
larly 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 Thomp-
son, 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 con-
cluded 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-convic-
tion 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 proceed-
ing. What steps exactly would suffice would have been un-
clear. 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 re-
viewed his petition, because that time was not his responsi-
bility. 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, peti-
tioner retaining the right to proceed pro se in forma pauperis if
indigent”).
    If anything, the Indiana rules seem to indicate that the bur-
den 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 prose-
cute 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 pro-
cedural 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, re-
main unexplored, and so we must remand Thompson’s peti-
tion to allow the parties to develop the record and allow the
district court to assess the merits of Thompson’s petition be-
fore 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.
