Full Opinion (html_with_citations)

                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 19a0273p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 ALLANAH T. BENTON,                                    ┐
                               Petitioner-Appellant,   │
                                                       │
                                                        >      No. 18-1869
 v.                                                    │
                                                       │
                                                       │
 SHAWN BREWER, Warden,                                 │
                              Respondent-Appellee.     │
                                                       ┘

                        Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit.
                No. 2:16-cv-13648—Denise Page Hood, Chief District Judge.

                                 Argued: October 22, 2019

                           Decided and Filed: November 6, 2019

              Before: CLAY, THAPAR, and NALBANDIAN, Circuit Judges.
                               _________________

                                        COUNSEL

ARGUED: Anna R. Rapa, Mears, Michigan, for Appellant. Jared D. Schultz, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Jared D.
Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee. Allanah Benton, Ypsilanti, Michigan, pro se.
                                    _________________

                                         OPINION
                                    _________________

      THAPAR, Circuit Judge. Allanah Benton alleges that her defense attorney’s bad advice
made her pass up a favorable plea deal. But she did not timely raise her claim and has not
offered a good excuse for not raising it.    Thus, she cannot obtain federal habeas relief.
We affirm.
 No. 18-1869                            Benton v. Brewer                                   Page 2


                                                 I.

       Benton is a former schoolteacher who was indicted for having sex with a twelve-year-old
student. She went to trial and testified that she was innocent. But a Michigan jury disbelieved
her and found her guilty.       The judge sentenced her to twenty-five to thirty-eight years’
imprisonment. Benton then traded in her two trial lawyers for new appellate counsel, who raised
several constitutional and evidentiary arguments. But her conviction was affirmed.

       Six months later, the Supreme Court handed down its decision in Lafler v. Cooper,
566 U.S. 156
 (2012). There, the Court held that defendants could make out a claim of ineffective
assistance of counsel by proving that their lawyer’s incompetence caused them to reject a
favorable plea offer.
Id. at 174
.   Benton returned to the trial court with a motion for
postconviction relief, alleging that had happened to her. She filed an affidavit stating that on the
first morning of her trial, her attorney Michael Cronkright told her she had twenty minutes to
decide whether to accept a brand-new plea offer. The deal was good: a year in jail for a guilty
plea to a lesser charge. Yet Benton was concerned: if she took the deal, would she lose custody
of her infant children? According to Benton, Cronkright told her that she would. So she turned
the deal down. But, Benton claimed, she would have accepted the plea had Cronkright conveyed
that the termination of her parental rights would not be automatic—that is, that the state would
have to begin termination proceedings and that a judge might rule in her favor.

       Did all this happen? Unclear. Benton and Cronkright’s pretrial conversation was off the
record. Only one snippet of the record, a transcript from a pretrial hearing two days earlier,
alludes to any discussion of a plea deal. And that transcript reveals precious little about where
plea talks stood at the time.

       But Benton faced a hurdle independent of the evidence. To get relief on her belated
claim, Michigan procedural law required Benton to show not only that the claim had merit but
also (1) that she had good cause for failing to raise it on direct appeal and (2) that she was
actually prejudiced by Cronkright’s alleged ineffectiveness. Mich. Ct. R. 6.508(D)(3)(a)–(b).
To show cause, Benton’s appellate counsel, who was still representing her in the postconviction
proceedings, offered to stipulate to his own ineffectiveness on direct appeal.
 No. 18-1869                              Benton v. Brewer                                  Page 3


       The trial court ruled that Benton failed to meet her procedural burden. It also rejected her
claim on the merits. In short, the trial court was not convinced either that Benton received a
definite plea offer or that she would have accepted the plea (given her protestations of
innocence). Michigan’s higher courts declined to review the ruling.

       So Benton, now proceeding pro se, filed a federal habeas petition. The district court
rejected her claim on the merits, largely tracking the state trial court’s reasoning. This court then
granted a certificate of appealability.

                                                  II.

       Benton’s ineffective-assistance claim stumbles over what lawyers call “procedural
default,” an arcane-sounding term for a simple idea. While state courts (just like federal ones)
must protect defendants’ rights, they also may insist that defendants present their arguments on
time and according to established procedures. So a federal court usually may not review a state
prisoner’s habeas claim if (1) the prisoner broke a state procedural rule, (2) the state court
enforced the rule, and (3) the procedural forfeiture was an adequate and independent ground for
denying relief. Maupin v. Smith,
785 F.2d 135, 138
 (6th Cir. 1986). Comity and federalism
demand nothing less. Still, a federal court may review a defaulted claim if the petitioner shows
(1) good cause for the default and actual prejudice from the claimed error or (2) that she is
actually innocent of the crime. See Sawyer v. Whitley,
505 U.S. 333
, 338–39 (1992).

       Benton does not dispute her procedural default. And for good reason. She didn’t raise
her claim on direct appeal as Michigan law requires. See Mich. Ct. R. 6.508(D)(3); see also
generally Mich. Ct. R. 7.212.         The state trial court relied on that rule in denying her
postconviction motion. And the rule is an adequate and independent state ground. See, e.g.,
Dufresne v. Palmer,
876 F.3d 248, 255
 (6th Cir. 2017) (per curiam); Amos v. Renico,
683 F.3d 720, 733
 (6th Cir. 2012); Ivory v. Jackson,
509 F.3d 284
, 292–93 (6th Cir. 2007).

       Instead, Benton aims to excuse her default. She does not argue that she is actually
innocent, but only attempts to show cause and prejudice. But that argument fails at the first
step—cause. Benton offers two reasons for not raising her claim on appeal: (1) Lafler was not
yet decided and (2) her appellate counsel was ineffective. Neither holds up.
 No. 18-1869                                  Benton v. Brewer                                             Page 4


        Novelty. Sometimes the novelty of a claim is good cause for not raising it sooner. Reed
v. Ross,
468 U.S. 1, 16
 (1984). But not often and not here. For novelty to amount to cause, the
bar is a high one—the claim must have been “so novel that its legal basis [was] not reasonably
available” at the time of default.
Id.

        Lafler was far from such a sea change. Long before Lafler, this circuit lent an ear to
defendants who claimed that their counsel’s deficient advice caused them to reject favorable plea
deals. See, e.g., Magana v. Hofbauer,
263 F.3d 542, 547
 (6th Cir. 2001). Indeed, Lafler came to
the Court on certiorari from a 2010 decision of this court granting relief on that very ground. See
Cooper v. Lafler,
376 F. App’x 563
 (6th Cir. 2010). So just because Lafler was decided in 2012,
that doesn’t mean Benton (or, more accurately, her lawyer) “lacked the tools to construct” her
claim in her 2011 appeal. Engle v. Isaac,
456 U.S. 107, 133
 (1982). Quite the contrary.

        Appellate counsel’s ineffectiveness.1 Another way to show cause for a default is to show
that appellate counsel’s failure to raise the issue was ineffective assistance in its own right.
Murray v. Carrier,
477 U.S. 478, 488
 (1986). But the petitioner has the burden to prove
ineffective assistance. See Harrington v. Richter,
562 U.S. 86, 104
 (2011). And Benton cannot
satisfy her burden with nothing—which is what the evidence of her appellate counsel’s
ineffectiveness amounts to.

        That evidence consists solely of her appellate counsel’s offer to stipulate to his own
ineffectiveness.       But that offer contained no concrete facts about counsel’s alleged
ineffectiveness or (for that matter) about any aspect of his performance in Benton’s appeal. And
in evidentiary terms, a threadbare “stipulation” by a nonparty counts for nothing at all. When
one party has the burden of proving an issue, the opposing party can concede that issue and lift
the first party’s burden. But no one else can do so in lieu of the opposing party. Including the
person whose conduct the issue is about.




        1Benton    did not raise this argument for cause in her federal habeas petition—there, she relied only on the
fact that Lafler came out six months after her direct appeal was decided. But Benton refers to this argument in her
briefs, the state does not suggest that she has forfeited it, and considering it does not complicate our task. See
Singleton v. Wulff,
428 U.S. 106, 121
 (1976).
 No. 18-1869                           Benton v. Brewer                                  Page 5


       Ineffective-assistance claims are no exception. See, e.g., Ebert v. Gaetz,
610 F.3d 404, 415
 (7th Cir. 2010) (state court properly ignored counsel’s “assessment of his own performance
as constitutionally ineffective”); Atkins v. Singletary,
965 F.2d 952, 960
 (11th Cir. 1992)
(attempts to “admit ineffectiveness” carry “no substantial weight”). So here, appellate counsel’s
attempt to establish his own ineffectiveness with a bare stipulation is meaningless.

       It makes no difference that the state court ruled that Lafler’s novelty and counsel’s
stipulation established cause. The cause-and-prejudice standard is a federal rule dictating when
federal courts will overlook a procedural default. See Murray,
477 U.S. at 489
. As it happens,
Michigan has adopted the same or nearly the same standard for when its courts will excuse a
procedural default. Mich. Ct. R. 6.508(D)(3)(a)–(b); see also People v. Jackson,
633 N.W.2d 825, 830
 (Mich. 2001) (per curiam). But crafting its rule that way was Michigan’s choice and
the state rule remains just that: a state rule. Benton’s claim is now in federal court, and the
existence of cause is “a question of federal law” that we must answer for ourselves under the
federal standard. Murray,
477 U.S. at 489
.

       Under that standard, Benton lacks cause to excuse her procedural default. Without cause,
we need not consider whether Benton has shown prejudice. We affirm.