Petition for Writ of Certiorari — Birt Ford, Petitioner v. Andrew Cole, Warden

Supreme Court briefApr 14, 2026

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No. 25-

In the Supreme Court of the United States

BIRT FORD,

PETITIONER,

ANDREW COLE,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT A. LONG

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, D.C. 20001

XIAO WANG

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW SUPREME

COURT LITIGATION CLINIC

580 Massie Road

Charlottesville, VA 22903

(434) 924-8956

x.wang@law.virginia.edu

Counsel for Petitioner

QUESTION PRESENTED

The Antiterrorism and Effective Death Penalty Act

permits federal habeas relief when a state prisoner proves

that the state court decision was “contrary to, or involved

an unreasonable application of, clearly established

Federal law” or was “based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d). To

obtain a federal evidentiary hearing, a prisoner must

show—subject to two exceptions not applicable here—

that they exercised “diligence,” by making “a reasonable

attempt, in light of the information available at the time,

to investigate and pursue [their] claims in state court.”

Williams v. Taylor, 529 U.S. 420, 435 (2000); 28 U.S.C. §

2254(e)(2). The question presented is:

Whether, consistent with §§ 2254(d) and (e)(2), a

federal court may deny an evidentiary hearing for lack of

diligence and deny habeas relief for lack of evidence when

the prisoner presented a colorable claim in state court and

pursued available procedures to develop the claim’s

factual basis, only for the state court to deny any

opportunity for such development and then reject the

claim because the prisoner “did not provide any

evidence.” App. 77a.

PARTIES TO THE PROCEEDINGS

Petitioner Birt Ford was the petitioner in the district

court and the court of appeals.

Respondent Andrew Cole is the warden of the

Pendleton Correctional Facility and is being sued in his

official capacity. In district court proceedings, Dushan

Zatecky was the warden of the Pendleton Correctional

Facility. In the court of appeals proceedings, Dennis

Reagle was the warden of the Pendelton Correctional

Facility.

Pursuant to Federal Rule of Appellate

Procedure 43(c) and Supreme Court Rule 35.3, Mr.

Zatecky and later Mr. Reagle were automatically

substituted as a party in this case.

iii

RELATED PROCEEDINGS

United States Court of Appeals (7th Cir.):

Ford v. Reagle, No. 21-3061, 2025 WL 3637961 (7th

Cir. Dec. 15, 2025). Rehearing denied Dec. 15,

2025.

Ford v. Reagle, 154 F.4th 884 (7th Cir. 2025).

Judgment entered Sept. 22, 2025.

United States District Court (S.D. Ind.):

Ford v. Zatecky, No. 1:20-cv-01639-RLY-TAB,

(S.D. Ind. Sept. 28, 2021). Judgment entered

Sept. 28, 2021.

Ford v. Zatecky, No. 1:20-cv-01639-RLY-TAB,

(S.D. Ind. Sept. 1, 2020). Order denying motion

for evidentiary hearing.

Indiana State Court (Post-Conviction Proceedings):

Ford v. State, No. 19A-PC-2721, 145 N.E.3d 120

(Ind. Apr. 23, 2020). Order denying petition to

transfer.

Ford v. State, No. 19A-PC-2721, 145 N.E. 3d 140

(Ind. Ct. App. 2020). Judgment affirmed Mar.

20, 2020.

Ford v. State, No. 02D04-0708-PC-000101 (Allen

Sup. Ct. Oct. 18, 2019). Judgment entered Oct.

18, 2019.

Indiana State Court (Trial and Direct Appeal):

Ford v. State, No. 02A03-0510-CR-510, 869 N.E.2d

446 (Ind. Jan. 3, 2007). Order denying petition

to transfer.

Ford v. State, No. 02A03-0510-CR-510, 856 N.E.2d

795, Ind. Ct. App. 2006). Judgment affirmed

Nov. 6, 2006.

Ford v. State, No. 02D04-0506-FA-000032 (Allen

Sup. Ct. Sept. 9, 2005). Judgment entered

Sept. 9, 2005.

TABLE OF CONTENTS

Question presented ................................................................... i

Parties to the proceedings ...................................................... ii

Related proceedings ............................................................... iii

Petition for a writ of certiorari ............................................... 1

Opinions below.......................................................................... 1

Jurisdiction ............................................................................... 1

Constitutional and statutory provisions involved ................. 1

Introduction .............................................................................. 4

Statement of the case .............................................................. 9

A. Statutory framework................................................... 9

B. Indiana proceedings. ................................................. 10

C. Federal proceedings. ................................................. 13

Reasons for granting the petition ........................................ 16

I. The Seventh Circuit’s approach conflicts with eight

other courts of appeals. ................................................... 16

A. Eight courts of appeals permit additional factual

development in federal court when a prisoner

presents their claim in state court and follows

state procedures. ....................................................... 17

B. The Seventh Circuit is alone in engrafting a time

bar onto § 2254(e)(2). ................................................. 22

II. The Seventh Circuit’s decision is incorrect................... 23

A. The decision below is atextual. ................................. 23

B. The decision below misreads this Court’s

precedent. ................................................................... 24

C. The decision below is unworkable............................ 28

III. This case presents an excellent vehicle to address

an important question of federal law. ............................ 30

Conclusion ............................................................................... 34

TABLE OF AUTHORITIES

Page(s)

CASES

Brown v. Davenport,

596 U.S. 118 (2022) ........................................................ 5

Brumfield v. Cain,

576 U.S. 305 (2015) ...................................................... 32

Douglas v. State,

634 N.E.2d 811 (Ind. Ct. App. 1994)............................ 9

Dunn v. Reeves,

594 U.S. 731 (2021) ...................................................... 29

Edwards v. State,

676 N.E.2d 1087 (Ind. Ct. App. 1997) .................. 29, 30

Edwards v. Vannoy,

593 U.S. 255 (2021) ................................................ 28, 29

Fooks v. Superintendent, Smithfield SCI,

96 F.4th 595 (3d Cir. 2024) ............. 6, 17, 18, 22, 23, 33

Fulton v. Graham,

802 F.3d 257 (2d Cir. 2015) ....................... 20, 21, 22, 33

Harrington v. Richter,

562 U.S. 86 (2011) ........................................................ 23

vii

Harrison v. Quarterman,

496 F.3d 419 (5th Cir. 2007) ................................... 6, 19

Hill v. Lockhart,

474 U.S. 52 (1985) ........................................................ 17

Hurles v. Ryan,

752 F.3d 768 (9th Cir. 2014) ....................................... 33

Hurst v. Joyner,

757 F.3d 389 (4th Cir. 2014) ................................. 21, 22

Jimenez v. Quarterman,

555 U.S. 113 (2009) ...................................................... 23

Lafler v. Cooper,

566 U.S. 156 (2012) ...................................................... 33

Martinez v. Ryan,

566 U.S. 1 (2012) .................................................... 31, 33

McFarland v. Yukins,

356 F.3d 688 (6th Cir. 2004) ................................. 21, 22

McQuiggin v. Perkins,

569 U.S. 383 (2013) ...................................................... 29

Milton v. Miller,

744 F.3d 660 (10th Cir. 2014) ................... 20, 22, 26, 33

Missouri v. Frye,

566 U.S. 134 (2012) ........................................................ 5

viii

Panetti v. Quarterman,

551 U.S. 930 (2007) ...................................................... 33

Pope v. Sec’y for Dep’t of Corr.,

680 F.3d 1271 (11th Cir. 2012) ............................. 21, 22

Rodney v. Garrett,

116 F.4th 947 (9th Cir. 2024) ...................... 6, 18, 22, 23

Shinn v. Ramirez,

596 U.S. 366 (2022) . 5, 6, 7, 8, 15, 16, 18, 27, 28, 29, 30,

33, 34

Silvers v. State,

250 N.E.3d 511 (Ind. Ct. App. 2025).......................... 30

Small v. Woods,

146 F.4th 590 (7th Cir. 2025) ................................ 32, 33

Stermer v. Warren,

959 F.3d 704 (6th Cir. 2020) ....................................... 33

Stouffer v. Trammell,

738 F.3d 1205 (10th Cir. 2013) ............................. 19, 20

Strickland v. Washington,

466 U.S. 668 (1984) ...................................................... 33

Thompson v. Brown,

901 F.3d 851 (7th Cir. 2018) ................................... 9, 28

Twyman v. State,

459 N.E.2d 705 (Ind. 1984) ................................... 26, 30

Underwood v. State,

722 N.E.2d 828 (Ind. 2000) ......................................... 26

In re Welke,

131 N.E.3d 161 (Ind. 2019) ........................... 6, 7, 10, 11

Williams v. Taylor,

529 U.S. 420 (2000) .... 5, 6, 7, 15, 16, 18, 19, 22, 23, 24,

25, 26, 27, 29, 34

Wilson v. Sellers,

584 U.S. 122 (2018) ...................................................... 29

STATUTES AND RULES

28 U.S.C.

§ 1254 .............................................................................. 1

§ 2244 ...................................................................... 23, 24

§ 2254 .......... 2, 3, 4, 5, 7, 8, 14–27, 29, 30, 31, 32, 33, 34

§ 2266 ............................................................................ 24

Ind. P.C.R.

Rule 1(a) ................................................................... 9, 26

Rule 1(4) ................................................................... 9, 26

Rule 1(9) ................................................................... 9, 10

Ind. R. Trial P.

Rule 11 ...................................................................... 9, 18

Rule 41 .......................................................................... 30

OTHER AUTHORITIES

Nancy J. King, et al., Habeas Litigation in U.S.

District Courts: An Empirical Study of Habeas

Corpus Cases Filed by State Prisoners Under the

Antiterrorism and Effective Death Penalty Act of

1996 (2007)............................................................... 29

PETITION FOR A WRIT OF CERTIORARI

Petitioner Birt Ford respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the Seventh Circuit is published at 154

F.4th 884 and is reproduced in the appendix to this

petition at App. 3a–25a. The order of the district court

denying Petitioner’s writ of habeas corpus is unpublished

and is reproduced in the appendix to this petition at App.

26a–62a.

JURISDICTION

The Seventh Circuit issued its opinion and judgment

on September 22, 2025. It denied a petition for rehearing

on December 15, 2025. This Court has jurisdiction under

28 U.S.C. § 1254(1).

On March 6, 2026, Justice Barrett granted Petitioner’s

application for extension of time to file a petition for writ

of certiorari, from March 15 to April 14, 2026.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment of the United States

Constitution provides that:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for

his defence.

28 U.S.C. § 2254(d), provides that:

(d) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to any

claim that was adjudicated on the merits in

State court proceedings unless the

adjudication of the claim—

(1) resulted in a decision that was

contrary

to,

involved

unreasonable application of, clearly

established Federal law, as determined

by the Supreme Court of the United

States; or

(2) resulted in a decision that was based

on an unreasonable determination of

the facts in light of the evidence

presented in

proceeding.

the

State

court

28 U.S.C. § 2254(e)(2) provides that:

If the applicant has failed to develop the

factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases on collateral

review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not

have been previously discovered

through the exercise of due diligence;

and

(B) the facts underlying the claim would be

sufficient to establish by clear and

convincing evidence that but for

constitutional

error,

reasonable

factfinder would have found the applicant

guilty of the underlying offense.

INTRODUCTION

A week before his criminal trial, Birt Ford spoke for

the first time to his court-appointed defense attorney,

Mitchell Hicks. App. 134a. “[D]uring this conversation,”

“Mr. Hicks told” Ford that the “State was willing to

negotiate” a plea, and Ford asked Hicks to “go see what

kind of deal they would offer.” Id. But Hicks “never did

what [Ford] requested concerning this potential plea

agreement.” Id. Ford proceeded to trial and a jury

convicted him of multiple felonies and misdemeanors. He

was sentenced to seventy years imprisonment.

Ever since, Ford has consistently argued that his trial

counsel was constitutionally ineffective.

He has

repeatedly tried to marshal evidence in support of that

claim. In state postconviction proceedings, Ford—

proceeding pro se—mailed interrogatories to Hicks,

moved to compel Hicks to respond to these

interrogatories, moved to depose Hicks, and requested an

evidentiary hearing to develop the evidence. App. 10a.

The state postconviction court denied each of these

requests. The state appellate court then denied Ford

relief because, in its view, Ford “did not provide any

evidence” in support of his ineffective-assistance claim

beyond “his own self-serving affidavit.” App. 77a.

Stymied in state court, Ford filed a habeas petition in

federal district court. The Antiterrorism and Effective

Death Penalty Act imposes several requirements on

prisoners seeking such relief.

To start, Ford needed to show that the state court’s

decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law,” 28 U.S.C.

§ 2254(d)(1), or was “based on an unreasonable

determination of the facts,” id. § 2254(d)(2). As to

§ 2254(d)(1), this Court has held that counsel is ineffective

if they negotiate a plea offer but fail to communicate the

offer back to the client. Missouri v. Frye, 566 U.S. 134,

145 (2012). A lawyer who does even less—i.e., who does

not even negotiate, even though the State is willing to talk

and the client asks his counsel to pursue negotiations—is

even more clearly ineffective. And as to 28 U.S.C. §

2254(d)(2), it would be difficult to imagine a more patent

example of a state court “decision that was based on an

unreasonable determination of the facts” than faulting a

prisoner for failing to obtain evidence that the state court

prevented him from obtaining.

Satisfying § 2254(d) alone does not entitle a prisoner

to relief. See Brown v. Davenport, 596 U.S. 118, 134

(2022). Instead, it clears the path for federal adjudication.

That in turn raises the critical question of whether 28

U.S.C. § 2254(e)(2) permits Ford an evidentiary hearing

to obtain the necessary factual development that the state

courts here denied.

There is no statutory bar to holding such a hearing.

Section 2254(e)(2) states that a federal court “shall not

hold an evidentiary hearing on [a] claim” if “the applicant

has failed to develop the factual basis of a claim in State

court proceedings.”1 And this Court has explained that “a

failure to develop the factual basis of a claim is not

established unless there is [a] lack of diligence,” which

“generally” means that a state prisoner must, to show

diligence, have “presented that claim to the state court in

accordance with state procedures.” Williams v. Taylor,

The statute recognizes two narrow exceptions to this rule,

neither of which applies here.

529 U.S. 420, 432 (2000); Shinn v. Ramirez, 596 U.S. 366,

371 (2022).

In line with this understanding, eight courts of appeals

have recognized that, when a prisoner presents a

colorable claim for relief and seeks “an evidentiary

hearing in the manner required by state law” and the

“state court just refuse[s]” to hold one, then “[n]othing

bars the district court from holding a hearing.” Fooks v.

Superintendent, Smithfield SCI, 96 F.4th 595, 597 (3d

Cir. 2024); see also, e.g., Rodney v. Garrett, 116 F.4th 947,

956–57 (9th Cir. 2024); Harrison v. Quarterman, 496 F.3d

419, 429 (5th Cir. 2007).

The Seventh Circuit has taken a different approach.

Despite Ford’s efforts to develop the record in state court,

the panel below held that he was not diligent. App. 21a–

23a. That is because, it noted, Ford “was represented by

counsel” for eleven years in state postconviction court

before he began litigating his case pro se. App. 21a.

During those eleven years, Ford’s counsel failed to

“develop[] a factual basis for [Ford’s] Strickland claim.”

Id. Such “failures,” the panel determined, “are imputed

to Ford,” and bar Ford from having any opportunity, in

state or in federal court, to obtain the evidence he needs

to substantiate his ineffective-assistance claim. Id.

To its credit, the Seventh Circuit recognized that

Ford’s “postconviction counsel’s performance” was

“especially concerning.” App. 21a n.3. So concerning, in

fact, that Ford fired his postconviction counsel. And the

year after postconviction counsel withdrew from this case,

the Indiana Supreme Court suspended postconviction

counsel’s license after determining that he had, for

several clients over several years, “neglected [his]

representation after collecting his fee” and “fail[ed] to

withdraw from representation upon being discharged.”

In re Welke, 131 N.E.3d 161, 164, 165 n.3 (Ind. 2019).

Despite these concerns, the Seventh Circuit claimed

that its hands were tied. In its view, Ford’s manifold

efforts to develop the record after counsel’s withdrawal—

mailing interrogatories, submitting receipts documenting

his efforts, moving to compel and depose, moving for an

evidentiary hearing—were no more than an “eleventhhour request for court assistance,” and thus irrelevant to

establishing diligence. App. 22a. Instead, “[u]nder Shinn

and Williams, postconviction counsel’s neglect is

attributed to Ford,” and the length of that neglect alone

is enough to demonstrate a lack of diligence, regardless of

Ford’s own actions to present his claim and later develop

the record. Id.

That is not what Williams and Shinn held. Williams

states that “[d]iligence for purposes of” § 2254(e)(2) “will

require in the usual case that the prisoner, at a minimum,

seek an evidentiary hearing in state court.” Williams, 529

U.S. at 435, 437. No one disputes that Ford did that and

more. Shinn reaffirms that prisoners must “raise their

federal claims in compliance with state procedures,” and

that their claims are defaulted if they do not do so. 596

U.S. at 378. Ineffective assistance by postconviction

counsel, Shinn adds, does not provide cause to overcome

this default, because the failures of postconviction counsel

are imputed to the client. Id. at 382. But this case does

not implicate that holding, because Ford did not default.

To the contrary, he properly raised his claim in state

postconviction proceedings and then repeatedly and

unequivocally requested evidentiary development of it in

both state and federal court.

In other words, unlike Shinn, Ford does not tie his

request for an evidentiary hearing to the failures of his

postconviction counsel. Instead, he seeks a hearing

because he complied with the applicable state rules to

develop the evidentiary record, but the record remains

undeveloped because the state court denied his

procedurally proper requests.

The panel’s decision is all the more startling because

no other state or federal court has even once suggested

that Ford was dilatory or insufficiently diligent. To the

contrary, after summarizing Ford’s attempts to develop

the record, the federal district court here opined that

“precedent would suggest” that “Ford was diligent in his

pursuit of testimony from his trial counsel.” App. 42a n.2.

The State did not discuss or challenge this

understanding on appeal. It did not even cite Williams or

Shinn in its brief, much less ask the Seventh Circuit to

find Ford not diligent. The panel reached that conclusion

on its own. In so doing, the panel identified no state

deadline that Ford missed, no state rule that he violated,

and no discernible standard by which a prisoner might

know whether his efforts come too early or arrive too late.

At bottom, the panel engrafted a “know it when you

see it” time bar onto § 2254(e)(2). But the statutory text

contains no such bar, this Court’s precedents have not

recognized one, and no other court of appeals has applied

one. The rigidity of that bar, invoked even when a

prisoner has made a reasonable attempt to investigate

their claims in state court, would be devastating to those

with meritorious claims. This Court should grant review

and reverse.

STATEMENT OF THE CASE

A. Statutory framework.

In Indiana, there is “no statute of limitations for a

postconviction petition”: “Any person who has been

convicted of, or sentenced for, a crime by a court of this

state, and who claims that the conviction or the sentence

was in violation of the Constitution of the United States

may institute at any time a proceeding” to “secure relief.”

Thompson v. Brown, 901 F.3d 851, 854 (7th Cir. 2018);

Ind. P.C.R. 1(a) (cleaned up).

In these postconviction proceedings, Indiana

prisoners may either be counseled or proceed pro se.

When a prisoner is represented by a public defender, they

“need not worry about delay” when “the public defender

review[s] his petition, because that time [is] not his

responsibility.” Thompson, 901 F.3d at 855 (citing

Douglas v. State, 634 N.E.2d 811 (Ind. Ct. App. 1994)). In

all events, a counseled prisoner—whether represented by

a public defender or a private attorney—may not file a

pleading or motion on their own in Indiana postconviction

proceedings. Instead, “[e]very pleading or motion” must

“be signed by” an “attorney of record.” Ind. R. Trial P.

11(A). If “an issue of material fact is raised” in a

petitioner’s “pleadings, depositions, answers to

interrogatories, admissions, stipulations of fact, and any

affidavits submitted,” then the postconviction “court shall

hold an evidentiary hearing as soon as reasonably

possible.” Ind. P.C.R. 1(4)(g).

On the other hand, if the “petitioner elects to proceed

pro se,” the State may move that “the cause [be]

submitted upon affidavit rather than hold an evidentiary

hearing.” Ind. P.C.R. 1(9)(b); App. 30a n.1. The State

may make no such motion when a prisoner is represented.

See Ind. P.C.R. 1(9)(b).

B. Indiana proceedings.

1. In June 2005, Birt Ford was charged with various

crimes arising from an incident with his wife. App. 4a.

The next month, the state court appointed Mitchell Hicks

to serve as Ford’s trial counsel. On July 13, 2005, the

State prosecutor “sent to” Hicks “a letter” in which the

prosecutor “offered to discuss” “guilty plea negotiations.”

Dist. Ct. Dkt. 1 at 13. Ford instructed Hicks to “go see

what kind of deal they would offer,” but Hicks “never did

what [Ford] requested concerning this potential plea

agreement.” App. 134a. As a result, Ford proceeded to

trial. A jury found him guilty of rape, burglary, and other

offenses, and Ford was later sentenced to seventy years

imprisonment. App. 4a. His conviction and sentence were

affirmed on direct appeal. Id.

In August 2007, Ford filed a petition for

postconviction relief in Indiana state court. Id. His

petition alleges that Hicks “fail[ed] to pursue plea

negotiations.” App. 12a. Ford was initially represented

by a state public defender. That attorney withdrew in

October 2010. App. 10a. Ford subsequently retained

Brent Welke.

In the years that followed, Ford regularly attempted

to contact Welke, but Welke often dodged Ford’s calls.

Finally, Ford reached Welke, learned that Welke had

done no work on his case, and fired him. Welke withdrew

in November 2018. The next year, four of the five justices

of the Indiana Supreme Court voted to suspend Welke’s

license without automatic reinstatement. In re Welke, 131

N.E.3d 161, 165 (Ind. 2019). The fifth voted for

permanent disbarment. Id. at 166.

In reaching this conclusion, the Indiana Supreme

Court noted that Welke had been the subject of numerous

misconduct complaints by his former clients. Id. at 164.

“While the misconduct in each case has differed slightly,

the cases collectively paint the picture of an attorney

whose primary motivation appears to be the collection of

legal fees rather than the provision of a valuable service

for his clients.” Id. at 164–65.

In one instance, Welke engaged in a “‘bait and switch’

representation” where Welke displaced “an experienced

public defender” by “exploiting inaccurate stereotypes

about public defenders and the particular vulnerability of

defendants and their family members to unrealistic

expectations.” Id. at 165. “In the end, switching from the

public defender to [Welke] earned [the] Client a lighter

wallet, comprehensively shoddier legal representation,

weakened bargaining power, the inability to meaningfully

participate in his own defense, . . . and several more years

in prison than he otherwise would have received.” Id. In

another case, Welke “charg[ed] unreasonable fees,

fail[ed] to withdraw from representation upon being

discharged . . . , and fail[ed] to refund unearned fees.” Id.

at 164–65 n.3.

3. On November 15, 2018, one day after Welke

withdrew, the State “moved to require Ford to submit

[his] case by affidavit”—i.e., to proceed without an

evidentiary hearing. App. 30a & n.1. One day after that,

and without giving Ford an opportunity to respond, the

Indiana postconviction court granted the State’s request.

App. 120a–21a. Ford did not learn of the State’s motion

or the court’s decision to grant that motion until a week

later, when sorting through his prison mail.

Upon learning of the court’s order, Ford, now pro se,

filed an objection and told the court that, as a prisoner, he

did “not have acess [sic] to e-filing/e-mail,” could not

“access [the] court order or any other documents on-line,”

and did “not want to miss a vital date set by this court

because he did not receive the order and cannot access online documents.” Seventh Cir. Dkt. 20 at 88. The Indiana

postconviction court overruled Ford’s objection,

concluding that it was “unsupported by any evidence or

citation to authority.” Id. at 91.

Ford then “mailed interrogatories to Hicks,” (his trial

attorney), and “asked the [postconviction] court for

assistance to compel Hicks to file an affidavit responding

to [these] interrogatories.” App. 10a. In his motion, Ford

explained that Hicks had “twice failed to respond to his

letters” regarding the failure to negotiate a plea. App.

30a. As support for this point, Ford “included receipts

showing the second round of letters was sent via certified

mail.” Id. The postconviction court denied this request.

App. 30a–31a. Without acknowledging these certified

mail receipts, the court stated that there was “nothing in

the record” indicating that Ford had “actually requested

any such affidavits from counsel.” App. 127a.

Ford next “moved for a court order to depose Hicks.”

App. 10a. The postconviction court denied that motion as

well. Id. The court later denied Ford’s request for an

evidentiary hearing and ultimately dismissed his petition.

On Ford’s plea-bargaining claim, the postconviction court

held that, because Ford did “not assert that he would have

admitted his guilt,” he did not demonstrate that such

negotiations “would have affected the outcome of the

proceedings.” App. 112a.

4. The Indiana Court of Appeals affirmed, but on a

different ground. It “rested its decision on the lack of

evidence corroborating Ford’s factual narrative.” App.

18a. The court faulted him for producing “no evidence

beyond Ford’s own ‘self-serving affidavit’ [that]

supported his version of events.” App. 12a. It added that,

because “Ford’s trial counsel did not provide any evidence

in this proceeding, we may presume that he would not

have corroborated Ford’s account.” App. 77a. The

Indiana Supreme Court denied further review.

C. Federal proceedings.

In June 2020, Ford filed a federal habeas petition in

the Southern District of Indiana. The petition reiterated

Ford’s plea-bargaining claim and renewed his request for

an evidentiary hearing.

1. The federal district court determined that the

Indiana Court of Appeals had committed a “misstep” in

resolving Ford’s plea-bargaining claim. App. 39a. The

Indiana Court of Appeals had “presume[d] that [Hicks]

would not have corroborated Ford’s account” because

Ford “did not provide any evidence” beyond his own

affidavit. App. 38a. But this “analysis,” the district court

explained, “ignores the fact that Ford tried to obtain trial

counsel’s testimony, both by writing him letters and by

asking the trial court to compel him to provide an

affidavit, participate in a deposition, or hold an

evidentiary hearing.” Id.

The district court thus “harbor[ed] concerns about

Ford’s ability to fairly litigate this claim given the postconviction court’s refusal to hold an evidentiary hearing

or otherwise assist Ford in procuring testimony from his

attorneys.” App. 40a. There is, it observed, “an

evidentiary lacuna when it comes to Ford’s claim about

trial counsel’s performance during the plea-bargaining

process.” Id. “Without trial counsel’s testimony, we don’t

know what counsel did or did not do.” Id. “For example,

it is possible that counsel did communicate with the

prosecutor, who may have had a plea agreement drafted,

and then he forgot to communicate the plea to Ford”—

which would have been a textbook example of ineffective

assistance. App. 40a–41a. Furthermore, the district court

added, the relevant “precedent would suggest” that Ford,

through his pro se efforts, was “diligent in his pursuit of

testimony from his trial counsel.” App. 42a n.2.

The district court nonetheless declined to grant Ford’s

petition or his request for an evidentiary hearing.

Instead, it “looked through” the decision of the Indiana

Court of Appeals to analyze and “examine the postconviction court’s” reasoning for “reject[ing] . . . Ford’s

plea bargain claim.” App. 13a, 39a. The district court

reasoned that “[b]ecause Indiana does not permit pleas if

a defendant refuses to admit his guilt,” and because

“there is evidence that Ford maintained his innocence,” it

follows that “the post-conviction court reasonably

concluded that Ford [had] failed to meet his burden.”

App. 40a.

The district court, however, acknowledged that

“jurists of reason could disagree” on its resolution of

Ford’s ineffective-assistance claim, and so granted Ford a

certificate of appealability. App. 42a.

2. On appeal, Ford repeated his request for an

evidentiary hearing under 28 U.S.C. § 2254(e) and for

habeas relief under 28 U.S.C. § 2254(d). Ford also argued

that the district court erred when it examined the reasons

that the postconviction court gave for rejecting Ford’s

plea-bargaining claim, because AEDPA requires that

federal courts examine the last reasoned opinion by a

state court, rather than stitch together multiple state

court opinions.

The Seventh Circuit agreed with Ford on this latter

point, crediting the argument as “well taken.” App. 17a.

As the panel explained, “nothing in the [state] appellate

court’s decision suggests that the appellate panel adopted

the trial judge’s rationale; in fact, the court never

mentioned it.” Id. Rather, the Indiana Court of Appeals

“rested its decision on the lack of evidence corroborating

Ford’s factual narrative on the plea-negotiation claim—

and most significantly, the absence of any testimony from

Hicks.” App. 18a. And “[a]s the last reasoned state-court

decision on the merits,” a federal court must “focus” its

“review on the appellate court’s reasons rather than the

trial judge’s.” Id.

Having recognized the district court’s error, however,

the panel then invoked for the first time a new obstacle to

relief. Drawing on Williams v. Taylor, 529 U.S. 420

(2000), and Shinn v. Ramirez, 596 U.S. 366 (2022)—

neither of which had been cited by any other court in this

case or briefed by the parties—the panel concluded that

Ford could “not establish diligence under § 2254(e)(2).”

App. 22a. In its view, “the responsibility to develop the

factual record rested with Ford’s postconviction counsel.”

Id. “His attorneys are at fault for not doing so,” and

“[u]nder Shinn and Williams,” “their 11-year failure to

act is imputed to Ford,” thereby barring a finding of

diligence as a matter of law. Id.

The panel acknowledged (1) that Ford’s “description”

of his postconviction counsel’s performance was

“especially concerning,” (2) that “the Indiana Supreme

Court later suspended counsel’s license for misconduct,”

and (3) that Ford later tried to expand the record while

pro se. App. 10a–11a, 21a n.3. But the court of appeals

determined that any “ineffective assistance in developing

the state-court record is attributed to the prisoner,” and

characterized Ford’s pro se efforts as an unavailing

“eleventh-hour request for court assistance.” App. 22a.

In addition to rejecting Ford’s request for a hearing, the

panel denied Ford habeas relief under 28 U.S.C. § 2254(d)

and reasoned, as to § 2254(d)(2), that the Indiana Court of

Appeal’s “decision was rooted in factual deficiencies, not

factual determinations.” App. 20a.

The Seventh Circuit denied a petition for rehearing on

December 15, 2025. App. 131a.

REASONS FOR GRANTING THE PETITION

I. THE SEVENTH CIRCUIT’S APPROACH

CONFLICTS WITH EIGHT OTHER COURTS OF

APPEALS.

In Williams v. Taylor, this Court held that, under

§ 2254(e)(2), “a failure to develop the factual basis of a

claim is not established unless there is lack of diligence, or

some greater fault, attributable to the prisoner or the

prisoner’s counsel.” 529 U.S. at 432. “Diligence for

purposes of [this provision] depends upon whether the

prisoner made a reasonable attempt, in light of the

information available at the time, to investigate and

pursue claims in state court.” Id. at 435. That means a

prisoner should, “at a minimum,” usually “seek an

evidentiary hearing in state court in the manner

prescribed by state law.” Id. at 437. Shinn v. Ramirez

reinforces this fundamental instruction: “A federal

habeas court generally may consider a state prisoner’s

federal claim only if he has first presented that claim to

the state court in accordance with state procedures.” 596

U.S. at 371.

A. Eight courts of appeals permit additional

factual development in federal court when a

prisoner presents their claim in state court and

follows state procedures.

1. Consistent with these principles, eight circuits have

recognized that a habeas petitioner is diligent when they

have presented a colorable claim in state court and

followed state procedures, but the state courts have

blocked additional evidentiary development.

The Third Circuit’s decision in Fooks v.

Superintendent, Smithfield SCI, 96 F.4th 595 (3d Cir.

2024), is instructive. Like this case, Fooks involved an

alleged breakdown in plea bargaining: here, the failure to

negotiate; there, the failure to give proper advice about

the parole consequences of a plea. If true, such claims

would clear the hurdle of § 2254(d) because, as Fooks

explains, “[t]he Supreme Court has clearly established

that

lawyer’s

incorrect

advice

can

violate Strickland when it affects ‘the outcome of the plea

process.’” Id. at 598 (quoting Hill v. Lockhart, 474 U.S.

52, 59 (1985)).

In addition, as here, the state court in Fooks denied

relief because the petitioner relied only on “his own bare

allegations;” consequently, “nothing in the record

supported Fooks’ claim.” Compare id. at 596–97 (cleaned

up); with App. 77a (“The only support for Ford’s claim . . .

is provided by his own self-serving affidavit.”). But that

is because—again, just like this case—“Fooks never got

to fully develop that record.” 96 F.4th at 597. “Although

he repeatedly asked for an evidentiary hearing,” the

“state court just refused” to grant him one. Id. That fact

pattern cleared the path for Fooks to obtain a federal

evidentiary hearing under § 2254(e)(2).

In reaching that conclusion, the Third Circuit

acknowledged that “habeas relief is hard to get.” Id. at

596. But “courts must give petitioners a fair shot.” Id.

“Because Fooks never got the state evidentiary hearing

that he sought, he should have gotten a federal one,” as

“he is asking for his first bite at the apple, not a second.”

Id. at 597, 599.

2. In Rodney v. Garrett, the Ninth Circuit examined

both Williams and Shinn, and determined, based on its

review of those cases, that “[a] prisoner is not at fault for

purposes of § 2254(e)(2) when his diligent efforts to

perform an act are thwarted by the conduct of another or

by happenstance.” 116 F.4th 947, 956 (9th Cir. 2024)

(cleaned up).

From that starting point, the Ninth Circuit explained

that when a petitioner “request[s] the appointment of

post-conviction counsel,” and the state court does “not

appoint counsel,” does “not allow discovery,” and

“decline[s] to hold an evidentiary hearing,” then the

prisoner does “not fail to develop the state-court record

within the meaning of § 2254(e)(2).” Id. at 956–57. That

is because the prisoner has done “all that he could”; an

“indigent prisoner who is denied counsel and discovery

has no practical likelihood of obtaining” and “develop[ing]

the evidentiary bases of his IAC claims.” Id. at 957.

Like the petitioner in Rodney, Ford also did “all that

he could.” Id. He hired counsel and, while represented,

could not bring any motions on his own, given Indiana’s

bar on hybrid representation. Ind. R. Trial P. 11(A).

After Ford fired his counsel, he repeatedly tried to

expand the record, but there was no “practical likelihood”

that he could do so from prison on his own without court

assistance. 116 F.4th at 957. The state court’s refusal to

provide that assistance is why factual development is both

necessary and appropriate in federal court.

3. In Harrison v. Quarterman, 496 F.3d 419, 429 n.6

(5th Cir. 2007), the petitioner “requested an evidentiary

hearing” in state proceedings. He also sought to obtain

an affidavit from a corroborating witness but was barred

from doing so because the Texas Department of Criminal

Justice “prevented him from corresponding with” that

witness. Id. at 428. Assuming these facts to be true, the

Fifth Circuit determined that petitioner’s allegations

were sufficient to satisfy Strickland. Id. It added, as to

§ 2254(e)(2), that petitioner’s “failure to obtain an

affidavit” is “not attributable to him,” and remanded to

the district court for further development of the record.

Id. at 428–29.

Notably, the Fifth Circuit declined to credit

respondent’s argument that the prisoner was not diligent

because he waited “ten months after his conviction

became final” before “attempt[ing] to” contact a

corroborating witness. Id. at 428. Respondent, the Fifth

Circuit observed, “apparently wants this court to read

§ 2254(e)(2)’s diligence requirement as mandating that a

habeas petitioner act ‘as soon as possible,’ but that is not

the law.” Id. at 429. The law, instead, turns on “whether

the prisoner made a reasonable attempt, in light of the

information available at the time, to investigate and

pursue claims in state court.” Id. (quoting Williams, 529

U.S. at 435) (emphasis in original). By attempting to

contact the witness “while his state habeas petition was

still pending,” and by seeking an evidentiary hearing, the

prisoner in Harrison had checked that box. Id.

4. The Tenth Circuit has also recognized that when a

petitioner “raise[s] [an] issue in his state application for

post-conviction relief” and “ask[s] the trial court for a

hearing,” but “the court refuse[s],” that is “sufficient to

satisfy § 2254(e)’s diligence requirement.” Stouffer v.

Trammell, 738 F.3d 1205, 1219 (10th Cir. 2013). And in

Milton v. Miller, 744 F.3d 660, 663 (10th Cir. 2014), it

applied that understanding to a claim that “trial counsel

failed to inform [the prisoner] of a favorable pretrial plea

offer.” Were that so, then the state court’s resolution of

the claim would have triggered § 2254(d). Id. at 671–72.

Tellingly, in Milton, the State filed—unlike this

case—an affidavit from one of the prisoner’s trial

attorneys stating that he had in fact informed the

petitioner of the State’s plea offer. Id. at 664. But the

Tenth Circuit ruled that it could not “simply assume the

credibility of” this affidavit over the prisoner’s “sworn

assertions” otherwise. Id. at 672. “In the end,” the

affidavit “simply creates a dispute of fact which has never

been explicitly resolved by any court and which the record

is inadequate to resolve.” Id.

5. Likewise, in Fulton v. Graham, 802 F.3d 257, 261

(2d Cir. 2015), the prisoner argued in state court

proceedings “that his trial counsel was ineffective for

failing adequately to advise him regarding [a] plea offer.”

As here, that prisoner was not granted an evidentiary

hearing in state court and could thus rely only on his own

affidavit.

But unlike the Seventh Circuit, the Second Circuit

held that “[a]lthough they may later be subject to

challenge, [these] sworn assertions provide sufficient

reason at this stage to believe that he may be entitled to

relief upon further development of the relevant facts.” Id.

at 266. The Second Circuit added that it saw “no basis to

conclude that” the prisoner had “failed to develop the

factual basis of [his] claim,” since he had “request[ed] an

evidentiary hearing” in state court and followed the

relevant procedures in state and federal habeas to develop

his claim. Id.

6. Similarly, in the Eleventh Circuit, “when a

petitioner request[s] an evidentiary hearing at every

appropriate stage in state court and [is] denied a hearing

on the claim entirely, the petitioner has satisfied the

diligence requirement.” Pope v. Sec’y for Dep’t of Corr.,

680 F.3d 1271, 1289 (11th Cir. 2012). Applying that rule

in Pope, the court determined that the petitioner had

“exercised diligence in attempting to develop the factual

basis of his . . . claims before the state court” because he

“requested an evidentiary hearing on these claims at

every appropriate stage of the state court collateral

proceeding.” Id. It added that “these allegations,

considered together, are powerful, and if he is able to

prove they are true, he would be entitled to habeas relief.”

Id. at 1294.

7. The Sixth Circuit likewise recognizes that an

individual is diligent if they “request[] an evidentiary

hearing on the issue of ineffective assistance of counsel at

every stage of her post-conviction proceedings,” but those

“requests [are] denied in the state courts.” McFarland v.

Yukins, 356 F.3d 688, 712 (6th Cir. 2004).

8. Finally, the Fourth Circuit has determined that

diligence is met when a prisoner submits “affidavits in

support of a specific Sixth Amendment claim” to the state

court, and requests “both discovery and an evidentiary

hearing” in state court—but the state court denies the

opportunity “for further evidentiary development.”

Hurst v. Joyner, 757 F.3d 389, 399 (4th Cir. 2014). Under

those circumstances, the prisoner does not “fail[] to

develop the factual basis of [his] claim under § 2254(e),

and [federal courts] are left with an incomplete and

inadequate record for review.” Id. at 399–400.

B. The Seventh Circuit is alone in engrafting a

time bar onto § 2254(e)(2).

The Seventh Circuit’s decision diverges sharply from

the decisions of these other circuits interpreting

§ 2254(e)(2). Under the panel’s rule, if a petitioner’s

counsel does not appear to “develop the factual record”

over an eleven-year period of representation, that is a per

se bar to establishing diligence—regardless of any other

fact or circumstance in the case. App. 22a.

No other federal court of appeals places a ticking clock

on how quickly a petitioner must move through state court

proceedings. Instead, other circuits have focused on

whether an individual sought factual development at the

appropriate “stage” of postconviction proceedings—

which Ford indisputably did when he moved to compel,

moved for an affidavit, and sought an evidentiary hearing

in state postconviction court, and then renewed his

request for factual development in federal court. Pope,

680 F.3d at 1289; accord McFarland, 356 F.3d at 712.

These other circuits have likewise explained, contra the

Seventh Circuit, that when a petitioner is left with only

their own affidavit because the state court prevented any

other factual development, then a federal court cannot

simply sideline the allegations in that affidavit as “selfserving.” See, e.g., Hurst, 757 F.3d at 399 (prisoner’s

presentation of “evidentiary affidavits in support of a

specific Sixth Amendment claim to the state . . . court”

was “sufficient to entitle him to . . . evidentiary hearing”);

Fooks, 96 F.4th at 597; Milton, 744 F.3d at 672; Fulton,

802 F.3d at 266.

In short, just as this Court instructed in Williams,

other courts of appeals focus on whether a petitioner has

“made a reasonable attempt, in light of the information

available.” Rodney, 116 F.4th at 956. And when the

petitioner has been denied a hearing in state court despite

such a reasonable attempt, then “he is asking for his first

bite at the apple, not a second” in federal court. Fooks, 96

F.4th at 597. The Seventh Circuit’s rule takes none of that

context into account.

II.

THE SEVENTH CIRCUIT’S DECISION IS

INCORRECT.

A. The decision below is atextual.

“As with any question of statutory interpretation, our

analysis begins with the plain language of the statute.”

Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). This

Court has reiterated that principle both for AEDPA

generally, see Harrington v. Richter, 562 U.S. 86, 98

(2011), and for § 2254(e)(2) specifically, see Williams, 529

U.S. at 431.

The panel’s reasoning flouts that understanding. To

start, § 2254(e)(2) does not state that petitioners have

“failed to develop” their claim if they do not act within a

particular period of time. It does not, in fact, say anything

about time at all. It instead simply requires that

petitioners raise and endeavor to develop the claim in

state court proceedings given the facts and circumstances

at hand.

Reading an implicit time bar into § 2254(e)(2) is all the

more inappropriate because AEDPA is otherwise replete

with specific and explicit timing provisions: § 2244(d)(1)

specifies a one-year period of limitation to file for federal

habeas; § 2244(d)(2) tolls that period when there is a

pending application for postconviction relief in state

court; § 2266(b)(1)(A) requires a federal district court to

“render a final determination and enter a final judgment”

within 450 days for any capital case; and § 2244(b)(3)(D)

requires a federal court of appeals to rule on “a second or

successive application not later than 30 days after the

filing of the motion.” Congress knew, in other words, how

to include a timing and limitation bar. It did so repeatedly

throughout AEDPA. It included no such provision in §

2254(e)(2). There is no reason for the Seventh Circuit to

add one to the statute.

B. The decision below misreads this Court’s

precedent.

Notwithstanding the Seventh Circuit’s assertions to

the contrary, neither Williams nor Shinn endorse the

panel’s imposition of a time bar on § 2254(e)(2).

1. In interpreting § 2254(e)(2), Williams instead

stresses that courts must undertake a context-dependent

inquiry: Whether a prisoner satisfies diligence “depends

upon whether the prisoner made a reasonable attempt, in

light of the information available at the time, to

investigate and pursue claims in state court.” 529 U.S. at

435. “[I]n the usual case,” that means a prisoner must “at

a minimum, seek an evidentiary hearing in state court.”

Id. at 437.

The result in Williams illustrates how that contextdependent analysis works in practice, because the

prisoner in Williams did not, in fact, “seek an evidentiary

hearing in state court.” Id. To the contrary, in state

habeas, his counsel did not “raise,” much less attempt to

“develop,” the prisoner’s “claims of juror bias,

prosecutorial misconduct, or the prosecution’s alleged

Brady violation.” Id. at 429. Those claims made their

debut in federal habeas. Id. This Court nonetheless

granted the prisoner an evidentiary hearing as to his juror

bias and prosecutorial misconduct claims because “[t]he

trial record contain[ed] no evidence which would have put

a reasonable attorney on notice” of such claims. Id. at 442.

On the other hand, because there were “repeated

references” in the trial record to the purported Brady

violation, the Court imputed postconviction counsel’s

“failure to investigate these references” to the prisoner,

and so denied him a hearing on that claim. Id. at 438–39.

To summarize: Williams states that diligence usually

requires the petitioner to seek an evidentiary hearing in

state court.

Yet it also recognizes that diligence

ultimately turns not on whether a prisoner has satisfied

this usual requirement, but whether the prisoner’s

actions were reasonable based on the information

available at the time in a particular case. So long as one’s

actions are reasonable—again, based on the specific

circumstances in a specific case—then a prisoner has

shown diligence and may obtain a hearing in federal court,

even if they did not expressly request an evidentiary

hearing in state court.

Under this framework, Ford stands on even firmer

footing than the prisoner in Williams. Unlike that

prisoner, Ford presented his claim in state court, sought

an evidentiary hearing in state court, and moved to

compel and depose his trial counsel in state court.

Furthermore, the specific circumstances in this case

explain why Ford filed those motions and made that

request when he did: because Indiana prohibits hybrid

representation, so he could not file any motions in state

court on his own during the eleven years he was

represented. Underwood v. State, 722 N.E.2d 828, 832

(Ind. 2000).

Nor, for that matter, did Ford have any reason to

suspect that these years would be held against him. The

State has never asserted the affirmative defense of laches,

and there is no statute of limitations in Indiana on when a

postconviction petition may be filed. Moreover, under

state law, the postconviction court “shall hold an

evidentiary hearing” so long as a represented party can

establish a dispute of material fact through their

“pleadings, depositions, answers to interrogatories . . .

and any affidavits.” Ind. P.C.R. 1(a) & (4)(g). Such a

dispute would have been made plain had Hicks in fact

been compelled to respond to Ford’s interrogatories and,

in his “answers to [Ford’s] interrogatories,” denied the

allegations from Ford’s affidavit. Ind. P.C.R. 1(4)(g);

Milton, 744 F.3d at 664, 672.

The Seventh Circuit’s rule takes none of these

circumstances into account. Under its rigid rule, it is

irrelevant that Indiana law imposes no time bar on a

prisoner for filing a postconviction petition or for

developing a postconviction claim. It is likewise irrelevant

that, under Indiana law, laches is an affirmative defense

which the State must assert—and which it did not do here.

See Twyman v. State, 459 N.E.2d 705, 711 (Ind. 1984).

And it is irrelevant that Ford properly followed state

procedures to develop his claim for relief. Indeed, under

the panel’s reasoning, Ford would be in the same position

if he had never filed any motions seeking depositions,

affidavits, or a hearing. He would be in the same place if

he had never even raised his claim at all.

That result cannot be what Congress intended.

Williams says so clearly: “[T]he statute does not equate

prisoners who exercise diligence in pursuing their claims

with those who do not,” and § 2254(e)(2) provides the

means for distinguishing the former from the latter. 529

U.S. at 436. The panel’s ruling erases that distinction

from the statute.

2. Shinn does not hold otherwise. There, the Court

examined whether a petitioner may obtain a federal

evidentiary hearing when they have not “presented

th[eir] claim to the state court in accordance with state

procedures”—when, in short, the claim is procedurally

defaulted. 596 U.S. at 371. And if “ineffective assistance

of state postconviction counsel” is why a claim has been

defaulted, “a federal habeas court may not conduct an

evidentiary hearing or otherwise consider evidence

beyond the state-court record,” because “attorney

ignorance or inadvertence cannot excuse procedural

default.” Id. at 380, 382 (cleaned up).

In reaching this conclusion, Shinn focused on the

interplay between procedural default and § 2254(e)(2). It

discussed the rationale behind procedural default at

length. Id. at 377–82. It stressed that the prisoners in

Shinn “did not raise” their ineffective-assistance claims in

state court. Id. at 372–74. And it explained that a federal

hearing is unavailable because, were it otherwise,

prisoners might “sandbag state courts by selecting a few

promising claims for airing on state postconviction review,

while reserving others for federal habeas review should

state proceedings come up short.” Id. at 391 (internal

quotation marks and alterations omitted).

None of those circumstances bear on this case. Ford

did not sandbag. He did not default. He presented his

claim in his state postconviction petition, mailed

interrogatories to his trial attorney to develop his claim,

sent certified mail receipts to the state courts to prove he

had done so, and repeatedly requested an opportunity to

expand the record. Put simply, unlike Shinn, Ford is not

seeking a federal hearing because of his postconviction

counsel’s ineffectiveness in raising a claim. He seeks a

hearing for a claim he raised and sought to develop

notwithstanding that ineffectiveness. The need for

further factual development flows from the state court’s

denial of those timely requests, not the negligence of

postconviction counsel.

C. The decision below is unworkable.

1. The Seventh Circuit’s ruling raises serious practical

problems. What is the “diligence” deadline that the next

petitioner should bear in mind when proceeding through

state postconviction? How should a petitioner balance

taking the time to adequately investigate a complex legal

question against the (undefined) hourglass that the

Seventh Circuit has imposed? When should Ford have

known to move on from his retained counsel?

It could not have been after three years, because that

is how long the appointed public defender spent reviewing

Ford’s case, and all agree that this amount of time is “not

[the petitioner’s] responsibility.” Thompson, 901 F.3d at

855. Was it four? Five? The Seventh Circuit offers no

answers to these questions—unsurprising for a “fix” that

is unmoored from text and precedent.

2. The standardless nature of the panel’s inquiry is

precisely what AEDPA sought to eliminate. In enacting

AEDPA, Congress sought to replace an “atextual and ad

hoc approach” with “a comprehensive system for

addressing federal habeas claims brought by state

prisoners.” Edwards v. Vannoy, 593 U.S. 255, 279–80

(2021) (Thomas, J., concurring). The statute intends to

curb judge-made law: Courts are “duty bound to enforce”

the statute by its own terms, and should not establish

“judge-made exceptions to judge-made barriers.”

McQuiggin v. Perkins, 569 U.S. 383, 403–04 (2013)

(Scalia, J., dissenting). Yet if that understanding requires

this Court to “reject [an] equitable rewrite of § 2254(e)(2)”

that favors prisoners “because it lacks any principled

limit,” then the principle must go both ways. Shinn, 596

U.S. at 386. There cannot be a “free-and-easy approach”

to judge-made barriers, but a rigid and inflexible one to

judge-made exceptions. McQuiggin, 569 U.S. at 403. The

better path—as this Court has made clear—is to construe

“the language of the statute” as written. Williams, 529

U.S. at 431.

3. The panel’s ruling is particularly ill-suited given the

realities of state postconviction review. Such review

frequently takes years. The average in some states for

noncapital cases is under four years, in others over a

decade. Nancy J. King, et al., Habeas Litigation in U.S.

District Courts: An Empirical Study of Habeas Corpus

Cases Filed by State Prisoners Under the Antiterrorism

and Effective Death Penalty Act of 1996, at 22 (2007).

This Court has time and again heard § 2254 cases

involving state postconviction proceedings that have

lasted many years. See, e.g., Wilson v. Sellers, 584 U.S.

122 (2018) (eight years); Dunn v. Reeves, 594 U.S. 731

(2021) (fourteen years). Such proceedings frequently last

as long or even longer in Indiana. See, e.g., Edwards v.

State, 676 N.E.2d 1087, 1090 (Ind. Ct. App. 1997)

(recognizing that “fourteen years is a lengthy period to

seek relief, [but] the mere passage of time alone is not

enough to” warrant the dismissal of a postconviction

petition); Silvers v. State, 250 N.E.3d 511, 517 (Ind. Ct.

App. 2025) (fifteen years).

To be clear, none of this means state postconviction

proceedings should be allowed to go on indefinitely.

There are tools to address delay: a motion asserting

laches by the State, Twyman, 459 N.E.2d at 711, or an

order for failure to prosecute by the state court, Ind. R.

Trial P. 41(E). But here no such motion was brought, no

showing of prejudice was made, and no such order was

filed.

Contrary to AEDPA’s goal of promoting

federalism, then, the panel’s decision to deny relief—

based on a theory the State did not assert and the state

courts did not recognize—does nothing to advance “state

sovereignty.” Shinn, 596 U.S. at 376.

III. THIS CASE PRESENTS AN EXCELLENT

VEHICLE TO ADDRESS AN IMPORTANT

QUESTION OF FEDERAL LAW.

1. This case presents a significant issue concerning

the breadth and scope of § 2254(e)(2): whether a federal

evidentiary hearing is available for a colorable claim

raised in state court and which the prisoner unequivocally

and properly sought to develop in state court.

Here, Ford followed Indiana law by not filing motions

on his own when counseled. And he followed Indiana law

when, proceeding pro se, he tried nearly half a dozen

times to expand the record, and documented those efforts

to the postconviction court. The state courts nevertheless

denied him every opportunity to develop those necessary

facts. Indeed, the district court here pointed out the

“evidentiary lacuna when it comes to Ford’s claim about

trial counsel’s performance during the plea-bargaining

process”—a lacuna that stems from “the post-conviction

court’s refusal to hold an evidentiary hearing or otherwise

assist Ford in procuring testimony from his attorneys.”

App. 40a.

What prevented the district court from holding an

evidentiary hearing was its erroneous application of the

“last reasoned opinion” rule, by looking through the

reasoning of the Indiana Court of Appeals to incorporate

the Indiana postconviction court’s analysis. App. 39a. On

appeal, however, the Seventh Circuit held that the district

court erred in so doing: “As the last reasoned state-court

decision on the merits, we focus our review on the

appellate court’s reasons rather than the trial judge’s.”

App. 18a. But having set aside the obstacle that

prevented the trial judge from holding a hearing, the

court of appeals erected a new roadblock—a de facto time

bar. The text of § 2254(e)(2) does not incorporate such a

bar, and the Seventh Circuit cited no case law for the

proposition that § 2254(e)(2) implicitly imposes one.

That is for good reason, and this case provides an

opportunity for the Court to make clear why. If the panel

decision stands, it creates an untenable situation for those

with meritorious claims, especially claims involving the

ineffective assistance of trial counsel. “While confined to

prison, the prisoner is in no position to develop the

evidentiary basis for a claim of ineffective assistance,

which often turns on evidence outside the trial record.”

Martinez v. Ryan, 566 U.S. 1, 12 (2012). But if a state

court denies additional factfinding despite the prisoner’s

repeated attempts to expand the record, and a federal

court upholds that denial based on a reason with no basis

in state or federal law, then the prisoner has no

opportunity—in state or federal court—to develop their

claims. Instead, they are trapped in a closed loop: no

state factfinding, no federal hearing, and no federal

review.

2. A federal court cannot hold an evidentiary hearing

for a claim adjudicated on the merits unless a prisoner

demonstrates diligence under § 2254(e)(2) and also

satisfies § 2254(d).

That additional requirement, however, poses no

obstacle to review here because, as the panel notes, its

§ 2254(d) and § 2254(e) analyses are intertwined. As the

Seventh Circuit explains, these are “[e]qually important”

inquiries, because the Indiana “appellate court’s decision

was rooted in factual deficiencies, not factual

determinations.” App. 20a; see 28 U.S.C. § 2254(d)(2) (“An

application for a writ of habeas corpus . . . shall not be

granted . . . unless the adjudication of the claim resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.”). Those

deficiencies are, in turn, “based on the lack of an

evidentiary record,” which itself is a product of Ford’s

lack of any opportunity—in state or in federal court—to

develop that record. App. 20a.

On this point—that the analysis of § 2254(d)(2) and

§ 2254(e)(2) run together—the panel’s ruling rests on

well-recognized ground. In Brumfield v. Cain, 576 U.S.

305, 311–12 (2015), the state court denied the prisoner an

evidentiary hearing as to the prisoner’s mental

competence. The district court concluded that this

amounted to an unreasonable determination of the facts

under § 2254(d)(2), and held a federal evidentiary hearing

under § 2254(e)(2). Id. The courts of appeals have,

consistent with this understanding, recognized that “[t]he

failure to hold a hearing could itself be an unreasonable

determination of fact.” Small v. Woods, 146 F.4th 590, 600

(7th Cir. 2025). That is because when “a state court makes

factual findings without an evidentiary hearing or other

opportunity for the petitioner to present evidence, the

fact-finding process itself is deficient and not entitled to

deference.” Stermer v. Warren, 959 F.3d 704, 721 (6th

Cir. 2020) (cleaned up); see also Hurles v. Ryan, 752 F.3d

768, 790 (9th Cir. 2014) (“We have held repeatedly that

where a state court makes factual findings without an

evidentiary hearing or other opportunity for the

petitioner to present evidence, the fact-finding process

itself is deficient and not entitled to deference.”) (internal

quotation marks omitted).2

Our criminal justice system is “a system of pleas, not

a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170

(2012).

And when an attorney allegedly renders

ineffective assistance in the plea-bargaining process, the

information supporting such a claim is almost invariably

outside the trial record. Martinez, 566 U.S. at 12. Under

governing precedent, a prisoner must usually present and

Ford argued below that the decision of the Indiana Court of

Appeals was an unreasonable factual determination under

§ 2254(d)(2) and that, under de novo review, his trial attorney’s

inaction ran afoul of Strickland v. Washington, 466 U.S. 668 (1984).

Seventh Cir. Br. at 42–60; see also Panetti v. Quarterman, 551 U.S.

930, 953 (2007) (no AEDPA deference when § 2254(d) is satisfied).

That said, the nature of Ford’s claim—that Ford’s attorney failed to

engage in plea negotiations—would also likely satisfy § 2254(d)(1).

See Milton, 744 F.3d at 672; Fulton, 802 F.3d at 266; Fooks, 96 F.4th

at 598.

make a reasonable attempt to develop that claim in “state

courts in compliance with state procedural rules.” Shinn,

596 U.S. at 376; Williams, 529 U.S. at 435. If a prisoner

does that and is still barred from any additional factual

development in state court, then § 2254(e)(2) ensures that

the prisoner will, at the very least, be afforded some

opportunity to develop and prove their claim in federal

court. Because of the Seventh Circuit’s approach to

§ 2254(e)(2) and § 2254(d), Ford never got that

opportunity.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,