LaLande filed a petition for a writ of habeas corpus seven years after his state conviction, contending that: (1) he was coerced into pleading guilty; (2) he received ineffective assistance of counsel; and (3) the prosecution had breached a promise not to prosecute him. The State moved to dismiss, contending that Rule 9 of the Rules Governing Section 2254 Cases contains a presumption of prejudice to the state from the delay when a petition is filed more than five years after the judgment. The State did not point to any actual prejudice, but relied solely on the presumption of prejudice arising from the passage of time. The district judge dismissed the petition for the reason stated by the State.

The Advisory Committee Note to Rule 9 does articulate the position espoused by the State. 28 U.S.C. § 2254 at 272 (1976). That statement, however, is in error. Congress specifically removed any presumption of prejudice from Rule 9(a) arising from the passage of time, putting the burden on the state to prove any prejudice. In 1976, Congress deleted the underlined material from Rule 9(a):

3 [1976] U.S.Code Cong. & Ad.News, 2478, 2485.

Congress gave two reasons for removing that presumption of prejudice:

Id. at 2481 (footnote 9 omitted). The House Report explained in footnote 8 that the burden of showing prejudice should be on the state because only it knew the facts:

Id. at 2482 n.8. Congress also approved of prior cases allowing a prisoner to file a petition well after five years from the date of conviction. See id. n.9.

Because the State made no showing that it was prejudiced by the seven-year delay, the district court erred in dismissing the petition under Rule 9(a). Consequently, we reverse and remand. As a result of our decision, we need not reach any other questions raised by LaLande.

REVERSED AND REMANDED.