Allanah Benton v. Shawn Brewer ( 2019 )


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  •                          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.