687 F.2d at 874 n. 1 (citations omitted). In an earlier case, however, Phillips v. Black, 367 F. Supp. 774 (E.D.Ky. 1973) aff'd. without opinion, 497 F.2d 924 (6th Cir. 1974), there was a prisoner challenge to a guilty plea and sentence on the grounds that there had been no attorney present at sentencing in 1955.
a) also comports with the way courts have generally dealt with delayed habeas petitions. While attempting assiduously to avoid the language of earlier Supreme Court cases stating implicitly and, sometimes, explicitly, that the doctrine of laches has no place in the habeas context, See Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154 (1957); Herman v. Claudy, 350 U.S. 116, 123, 76 S.Ct. 223, 110 L.Ed. 126 (1956); Uveges v. Pennsylvania, 335 U.S. 437 (1938), courts, faced with delayed petitions, have consistently applied the doctrine while, at the same time, refusing to call it by its proper name. Seizing upon the fact that a petitioner seeking habeas relief ordinarily has the burden of establishing a violation of his constitutional rights, See Caudill v. Cowan, 367 F. Supp. 905, 907 (E.D.Ky. 1973), aff'd 500 F.2d 1402 (6th Cir. 1974), cert. denied, 419 U.S. 1041, 95 S.Ct. 528, 42 L.Ed.2d 317 (1974), Phillips v. Black, 367 F. Supp. 774, 776 (E.D.Ky. 1973), aff'd 497 F.2d 924 (6th Cir. 1974); Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir. 1970); Bradley v. Cowan, 500 F.2d 380, 381 (6th Cir. 1974); Goins v. McKeen, 605 F.2d 947 (6th Cir. 1979), courts have used the doctrine to increase the petitioner's burden of proof in establishing a constitutional violation. This approach usually resulted in such statements as that while an extended time lapse before asserting a claim for relief would not serve as an absolute bar to habeas relief, it might serve to increase "the burden on the petitioner to overcome the presumption of the regularity of his conviction," Black, supra at 776.
As the Court of Appeals for the District of Columbia noted, "[w]hile lapse of time alone may not warrant denial of the issuance of the writ, it is certainly true that one who attacks the validity of his plea so long after the proceedings in the District Court must carry a heavy burden if he is to overcome the regularity of his conviction," Pasley v. Overhosler, 108 U.S.App.D.C. 332, 333, 282 F.2d 494, 495 (D.C. Cir. 1960) (per curiam). See also Phillips v. Black, 367 F.Supp. 774, 776 (E.D.Ky. 1973), aff'd mem., 497 F.2d 924 (6 Cir. 1974) (lapse of 16 years prior to collateral attack "increases the burden on the petitioner to overcome the presumption of the regularity of his conviction"); Bradley v. Cowan, 500 F.2d 380, 381 (6 Cir. 1974) (per curiam) ("That issue was not raised by petitioner until five years after his conviction and after his counsel had appealed his conviction to the Supreme Court are matters to be considered in weighing the merits of petitioner's allegations."). Because of the failure of the district judge to give appropriate weight to this principle, as well as for many of the reasons stated in Judge Moore's opinion, the court's conclusion that Honeycutt did not have the assistance of counsel cannot stand.
However, in the absence of a transcript of the court's instructions to the jury, and according to the state proceedings the presumption of regularity to which they are entitled, we have no alternative but to hold that Thompson has failed in carrying his burden of proving that the jury was not properly instructed. Allen v. Perini, 424 F.2d 134, 138 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970); Phillips v. Black, 367 F. Supp. 774 (E.D.Ky. 1973), aff'd, 497 F.2d 924 (6th Cir. 1974); Goins v. Brierley, 464 F.2d 947 (3rd Cir. 1972). The responsibility of placing the charge before us was that of the appellant, and it would seem improper to place the onus of his not having done so on the appellees in this habeas corpus proceeding which attacks a judgment of conviction arising from a trial which was held more than four and one-half years ago.
Pugh testified that other inmates were too busy to help him with his writ or wanted to be paid a sum he couldn't afford. Most federal courts have held that lapse of time alone does not warrant the denial of habeas corpus relief. Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 75 S.Ct. 223, 100 L.Ed. 126 (1956) (lapse of eight years); Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154 (1951) (lapse of eighteen years); Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948) (lapse of six years); Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970) (lapse of forty-four years); Caudill v. Cowan, 367 F. Supp. 905 (E.D. Ky. 1973) aff'd 500 F.2d 1402 (6th Cir.). cert. denied 419 U.S. 1041, 95 S.Ct. 528, 42 L.Ed.2d 317 (1974) (lapse of ten years); Phillips v. Black, 367 F. Supp. 774 (E.D. Ky. 1973), aff'd 497 F.2d 924 (6th Cir. 1974) (lapse of sixteen years). As the Court in Pennsylvania ex rel. Herman v. Claudy, supra, noted, "[t]he sound premise upon which these holdings rested is that men incarcerated in flagrant violation of their constitutional rights have a remedy."
The more serious question is whether the lapse of time since 1951, and the consequent loss of evidence possibly contradicting Bashlor's testimony of events at that time, should be held to foreclose Bashlor now on principles of laches. Cf. Phillips v. Black, 367 F. Supp. 774 (E.D.Ky. 1973), aff'd 497 F.2d 924 (6th Cir. 1974); Hudson v. Alabama, 361 F. Supp. 1102 (M.D. Ala. 1973), rev'd, 493 F.2d 171 (5th Cir. 1974); Frost v. Montana, 249 F. Supp. 349 (D.Mont. 1966) (effect of delay in asserting defects in guilty pleas). In the particular circumstances of this case, we decline to penalize Bashlor for delay in asserting his right to a first appeal with assistance of appointed counsel.